The Alien Tort Statute, Federalism, and the Next Wave of Transnational Litigation

Donald Earl Childress III

The role of international and transnational law in U.S. courts is one of the most hotly contested debates in legal scholarship.  From the question of the use of comparative legal materials by the Supreme Court, to the question of what effect, if any, judgments of international tribunals such as the International Court of Justice have in the United States, to the question of the self-execution of treaties, to the question of whether customary international law is federal law, few other areas of legal academic study have elicited such pronounced, rich, cross-disciplinary, and wide-ranging perspectives.  There are two primary camps in this debate.  Scholars of a so-called internationalist perspective argue that U.S. federal courts have both the constitutional authority and institutional competence to apply and develop international-law norms. In contrast, so-called sovereigntist scholars (sometimes called revisionists) challenge those views and explain that post-Erie Railroad Co. v. Tompkins1 understandings of federalism and separation of powers counsel against U.S. courts developing international-law norms without clear sanction and direction from the political branches.  These are not just academic debates.  Indeed, the question has been taken up by federal and state legislators concerned about the application of non-U.S. law by U.S. courts and has made an appearance in recent Supreme Court nomination hearings before the Senate.

The Alien Tort Statute (ATS)2 has served as the starting point for many of these debates.  This is so because no other U.S. statute frames the issue of U.S. courts’ application of international law so starkly.  The ATS provides U.S. federal district courts with original jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”3  From that sparse and opaque language, litigants have asked U.S. courts to interpret international law and questions related to it, creating a host of bewildering questions that have sprung from these courts’ decisions.  Put simply, the question is whether U.S. courts should be tasked with applying and developing international law and, if so, what are the appropriate constraints on the courts in so doing?  Phrased another more robust and critical way: should international law be part of U.S. law at all?

Of the many questions that have arisen, perhaps the most immediate and pressing ones relate to international-human-rights cases.  Over the past thirty years, the ATS has increasingly been used by human-rights activists and plaintiffs’ lawyers attempting to hold nonstate actors such as multinational corporations accountable for alleged human-rights violations committed outside of the United States.  The importance of the ATS in transnational human-rights litigation against such actors cannot be understated.  Since the modern resurgence of the ATS that began with the Second Circuit’s landmark decision in Filártiga v. Peña-Irala,4 which opened U.S. federal courthouse doors to foreign plaintiffs claiming international-human-rights violations, there have been approximately 173 judicial opinions regarding the ATS. One hundred fifty-five ATS cases have been filed against corporations in federal courts, with about six to ten ATS cases being filed annually.  While at least seventeen cases have settled, most ATS cases have resulted in rulings favorable to corporate defendants.  Although it has been challenging for plaintiffs to litigate ATS cases against corporations to a favorable judgment, plaintiffs have generally chosen to press ahead with ATS claims.  This choice and the number of cases generated by it have interposed federal courts into the international-law dialogue and has spawned a substantial academic literature.

ATS cases implicate important institutional and structural concerns at the very heart of our system of government—concerns such as separation of powers, democracy, federalism, and international relations. Concerns of judicial process and judicial competency in the area of foreign affairs are also raised, as well as questions about the extraterritorial application of U.S. law and the conflict between our law and foreign law that such application creates. In looking at ATS cases, therefore, one confronts many of the questions related to transnational litigation in U.S. courts.

The present ATS landscape is ripe for review and reconsideration.  This is so because the legal availability of the ATS to reach corporations for alleged international-human-rights violations occurring abroad is now unsettled.  Over the past several years, various federal appellate courts have issued opinions that intimate a more limited role for the ATS in policing the activities of corporations outside of the United States.  Most notably, in late 2010, the Second Circuit in Kiobel v. Royal Dutch Petroleum Co. held that corporations are not subject to suit under the ATS because corporate liability for customary-international-law violations has not been specifically established as part of international law.5  Since that decision, the Seventh, 6 Ninth, 7 and D.C. Circuits 8  have held that corporations may be subject to suit under the ATS.  In light of this split, the Supreme Court’s recent grant in the Kiobel case creates the potential for a path-marking decision regarding the future of ATS claims against corporations for alleged human-rights violations occurring abroad. 9

Even putting aside the question of whether corporations are amenable to suit, and regardless of how the Supreme Court ultimately resolves the Kiobel case, recent federal appellate decisions, especially in the area of pleading standards and forum non conveniens, may themselves constrain the ability of plaintiffs to use the ATS to police the activities of nonstate actors occurring outside of the United States. These recent decisions threaten to undo a generation of work in transnational public-law litigation started and theorized in many ways by Harold Koh, former dean of the Yale Law School (and now legal advisor to the State Department).  These decisions also pose challenges for transnational litigation generally, as the legal doctrines announced therein are not limited to ATS suits.

This Article starts with one central question: What if we are witnessing the contraction of ATS litigation in federal court on account of these decisions?  Such a result would affect the scholarly debate as well as lead to further debates concerning other sources of law, such as state and foreign law, which will become the new battlegrounds for transnational litigation in U.S. courts. This Article shows that as the ATS debate regarding international and transnational law in U.S. courts moves away from federal law to state and foreign law, the debate will be refocused as one involving the appropriate relationship between federal and state law and federal and state courts in applying international law, especially in international human rights cases.  The next wave of transnational litigation and academic commentary about that litigation will focus on federalism concerns.

This Article makes three contributions to the debate about the role of international and transnational law in U.S. courts.  First, the Article provides clarity regarding the future of ATS litigation in federal courts, which, as discussed, is the primary vehicle through which scholars have approached the subject of international law in U.S. courts.  As the Article will show, federal appellate court decisions limiting ATS suits will not end the debate concerning what role international law should play in U.S. courts, but will instead create new issues that can be prospectively examined both as they apply to ATS cases and generally in transnational cases.  Second, the Article shifts the debate regarding transnational litigation in U.S. courts away from questions of federal law to questions of state and foreign law.  Third, the Article discusses the likely sources of debate surrounding transnational litigation in U.S. courts in the next decade—a debate that will be about federalism, choice of law, extraterritoriality, preemption, and due process in the context of state and foreign law.  The Article concludes by explaining why a congressional fix to the problem of pleading transnational cases in U.S. courts most appropriately balances the federalism issues at stake in international litigation in U.S. courts.

Acknowledgments:

Copyright © 2012 Donald Earl Childress III.

Donald Earl Childress III is an Associate Professor of Law at the Pepperdine University School of Law.

This Legal Workshop Article is based on Donald Earl Childress III, The Alien Tort Statute, Federalism, and the Next Wave of Transnational Litigation, 100 Geo. L.J. 709 (2012), available at http://georgetownlawjournal.org/articles/the-alien-tort-statute-federalism-and-the-next-wave-of-transnational-litigation.

  1. 304 U.S. 64 (1938).
  2. 28 U.S.C. § 1350 (2006).
  3. Id.
  4. 630 F.2d 876 (2d Cir. 1980).
  5. 621 F.3d 111, 145 (2d Cir. 2010), reh’g denied, 642 F.3d 268 (2d Cir. 2011), and reh’g en banc denied, 642 F.3d 279 (2d Cir. 2011), cert. granted, 132 S. Ct. 472 (2011) (No. 10-1491). This decision followed an equally important decision by the Second Circuit holding that a plaintiff seeking to prove aiding-and-abetting liability under the ATS must show that a defendant “purposefully aid(ed) and abet(ted) a violation of international law.” Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir. 2009). In changing the standard from knowledge to purpose, the Second Circuit placed a heavier burden of proof on plaintiffs filing in ATS cases against corporations. Of course, after Kiobel, corporations in that circuit are not amenable to suit under the ATS. Kiobel, 621 F.3d at 145.
  6. Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1017–21 (7th Cir. 2011).
  7. Sarei v. Rio Tinto, PLC, No. 02-56256, 2011 WL 5041927, at *19-25 (9th Cir. Oct. 25, 2011) (en banc).
  8. Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 40–41 (D.C. Cir. 2011).
  9. After hearing oral argument in Kiobel, the Supreme Court ordered reargument to consider “(w)hether and under what circumstances the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Order in Pending Case 10-1491, 565 U.S. ____ (Mar. 5, 2012).  At the time of this writing, a cert. petition has also been filed in the Sarei case. Petitioners asked the Court to grant the cert. petition and hear the case in tandem with Kiobel. See Trey Childress, Another ATS Case Seeking Supreme Court Review, Conflict of Laws.net (Dec. 20, 2011), http://conflictoflaws.net/2011/another-ats-case-seeking-supreme-court-review.  In light of the Court’s order for reargument in Kiobel, the Court may resolve many pending ATS questions through the extraterritoriality doctrine.  In expanding the question presented, the Court’s decision has the potential to impact not only corporate ATS suits but all ATS suits.

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