The Alien Tort Statute (ATS) has generated considerable controversy since its rebirth a little more than 30 years ago. (1) The Supreme Court did not give any guidance to the lower courts until two recent decisions. In 2004, the Court first took up the Statute in Sosa v. Alverez-Machain, (2) in which it clarified the source of the governing law and explained the types of conduct that were actionable under the Statute. Then, in 2013, the Court in Kiobel v. Royal Dutch Petroleum Co. (3) examined the need for some type of connection with the United States as a condition for suit under the Statute. While these cases made it more difficult to sue under the ATS, they also resolved some of the controversy over the Statute. Notwithstanding the guidance from the Court, the opinions themselves raise new issues and leave unresolved some of the other issues relevant to ATS litigation.
This Article will examine a number of procedural issues relevant to the Alien Tort Statute, focusing on what the Supreme Court has resolved and what remains open for future litigation. It will analyze the constitutional basis for the Statute and explain how the law of nations, as part of federal common law, established the decision rules for ATS litigation. Then it will examine the meaning of the territoriality limitation imposed by Kiobel in the context of the Court's established practice of interpreting jurisdictional statutes narrowly. After looking at the relevance of recent changes in personal jurisdiction law for ATS suits, the Article will examine statutes of limitations and tolling rules, forum non conveniens, exhaustion of remedies, and comity. It will conclude with consideration of the issues that remain to be answered by future litigation under the Statute.
I. ATS AS JURISDICTIONAL STATUTE AND THE COMMON LAW'S INCORPORATION OF THE LAW OF NATIONS
Every first-year law student learns that federal courts are courts of limited jurisdiction. That statement is true today, but it had much more meaning at the time of the founding of the United States. In the late eighteenth century, state trial courts were viewed as the "courts of general jurisdiction" that would do most of the legwork for all kinds of litigation. The Framers of the Constitution could not agree on whether to create federal trial courts, with some delegates supporting only federal appellate jurisdiction in a supreme court and leaving all federal litigation to the state trial courts. (4) The famous Madisonian Compromise left that decision to the first Congress. As a result, Article III of the Constitution, which created the federal courts, says that "[t]he judicial power of the United States, shall be vested in one supreme court, and such inferior courts as the Congress may from time to time ordain and establish." (5)
Congress took little time to resolve that compromise. In the first Judiciary Act (of 1789), it created federal trial courts but gave them limited jurisdiction. Since navigation along the coast and in interstate waters was so important to the economy of a unified country, the federal courts were given jurisdiction over admiralty matters. There were a few federal crimes created, so federal courts were given jurisdiction to hear them. The Framers were concerned about provincialism in the new States, made even more likely through the use of local juries, so Article III contained specific grants of jurisdiction in federal courts to try to minimize discrimination against out-of-staters. (6) British creditors were worried that they would be unable to collect their debts in the aftermath of the Revolutionary War, so the Treaty of Peace ending the war contained a provision requiring the federal government to assure impartial litigation of the rights of the British. (7) As a result, Article III expressly authorized the federal courts to hear disputes between an alien and a citizen of a state ("alienage" jurisdiction). Also reflecting this concern for in-state bias, Article III contained a provision for diversity jurisdiction covering suits between citizens of different states. Both of these provisions led to the first Congress creating alienage and diversity jurisdiction in the federal trial courts. The first Judiciary Act did not, however, create jurisdiction in the federal trial courts for the entire scope of federal court jurisdiction listed in Article III. For example, federal trial court jurisdiction over cases involving federal statues (federal question jurisdiction) did not exist until 1875; those types of cases were left to the state courts. (8) The jurisdiction of the federal courts and its business was so light that the first Chief Justice, John Jay, resigned out of boredom to run for Congress.
It was in this era of tightly limited federal jurisdiction and concern for discrimination against out-siders that the Alien Tort Statue was born. Although there is some disagreement over the first Congress's reasons for enacting the statute, (9) the Supreme Court in Sosa v. Alvarez-Machain (10) accepted the general consensus that Congress was responding to recent incidents involving affronts to foreign diplomats in the United States. (11) The Alien Tort Statute opened up a federal forum for these types of disputes between non-citizens.
The original version of the Statute gave the federal district courts "cognizance, concurrent with the courts of the several States, or the [federal] circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." (12) If this statute were enacted today as a stand-alone provision, it would be interpreted as doing two things: creating a federal forum and also creating a federal cause of action. The cause of action would be a statutory tort based on a violation of the law of nations or a treaty. This interpretation would avoid the controversial questions that involve the extent of federal common law today in the aftermath of Erie Railroad Co. v. Tompkins (13) because the cause of action would be a statutory one (based on the law of nations) rather than a common law one. However, in 1789, the law of nations was viewed as part of the common law applicable throughout the United States. It is well accepted that the clause created only jurisdiction in the federal courts and that the cause of action came from the common law and its incorporation of the law of nations. (14) In Sosa, the Court quoted a commentator for the proposition that it would be "simply frivolous" to consider the ATS as creating a statutory cause of action. (15) The late eighteenth century was a time when the common law created and defined most rights, as the age of statutory rights was decades away. (16) In addition, the location of the initial ATS as a clause in a lengthy statute defining federal court jurisdiction of many types also supports the conclusion that it was only jurisdictional. (17)
If the Alien Tort Statute were used by an alien to sue another alien, the only clause in Article III of the Constitution that would allow federal court jurisdiction is the "arising under" clause, which allows jurisdiction for suits arising under federal law. (18) An ATS suit arises under federal law because the Statute provides for suits governed by federal common law since the law of nations was then and is now part of federal common law. If one were to interpret the Statute as invoking the law of nations directly rather than through federal common law, there would be no authorization for federal court jurisdiction under Article III. As the Statute is constitutional, it allows jurisdiction for a federal common law cause of action, based on the law of nations. (19)
Besides resolving the source of federal authority for the ATS, Sosa clarified the kinds of suits that were within ATS jurisdiction. Relying on Blackstone, the Court noted that three types of suits would have been within the law of nations in 1789: offenses against ambassadors, violations of safe conduct, and price capture and piracy. (20) However, the Statute was not locked into only these three kinds of suits. The Court wrote:
We think it correct, then, to assume that the First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations though we found no basis to suspect Congress had any examples in mind beyond those torts corresponding to Blackstone's three primary offenses: violation of safe conducts, infringements of the rights of ambassadors, and piracy. We assume, too, that no development in the two centuries from the enactment of section 1350 to the birth of the modern line of cases beginning with Filartiga v. Pena-Irala 630 F.2d 876 (C.A. 2 1980), has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law. Congress has not in any way amended section 1350 or limited civil common law power by another statute. Still there are good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind. Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with specificity comparable to the features of the 18th century paradigms we have recognized. (21)
Thus the Court left for another day the identification of new causes of action that are based on a norm that is universally accepted and defined with the requisite specificity, although it noted with approval the comment in Filartiga that the torturer is the modern-day equivalent of the pirate. (22)
II. PRESUMPTION AGAINST EXTRATERRITORIALITY
Kiobel's contribution to our understanding of the Alien Tort Statute is its answer to the question of "[w]hether and under what circumstances the [ATS] allows courts to recognize a cause of...
