- Daniel Swearingen, Alien Tort Reform: A Proposal to Revise the Alien Tort Statute, 48 Hous. L. Rev. 99 (2011). (Westlaw)
A little known federal statute, the Alien Tort Statute (ATS), grants federal courts 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.” Beginning in 1980 with the landmark case Filartiga v. Pena-Irala, which recognized that torture was a violation of international law that could be heard in U.S. federal courts under the ATS, the statute has transformed from an obscure item of legal trivia into an important vehicle for the enforcement of international human rights. Over the last thirty years, judges have interpreted the ATS expansively to grant federal district courts jurisdiction over a wide variety of new actions. In the 2004 case Sosa v. Alvarez-Machain, the U.S. Supreme Court construed the ATS for the first time, holding that the statute was primarily jurisdictional in nature and that the recognition of new causes of action under the statute through the federal courts’ common law authority must be done with great caution. In Sosa, the Court affirmed the Filartiga line of cases allowing the creation of new causes of action under the ATS, but the Court also made clear that the standard for recognition of new causes of action would be difficult to meet.
As liability under the ATS has continued to expand through judicial decisions, criticism of the statute’s application has become more and more heated, particularly since courts have permitted plaintiffs to proceed in suits against private corporations. Critics of the ATS have called for congressional action to close this legal loophole, but legislative efforts to do so have been fleeting at best. This Comment explains that legislative efforts to revise the ATS have failed to provide an appropriate balance between preserving the importance of the ATS in the enforcement of human rights and the legitimate political and economic concerns over liberal use of the statute. This Comment argues that the difficulties inherent in ATS litigation call for great caution in expanding liability under the statute and indicate that legislative action clarifying the jurisdiction and adapting the statute to the modern world will ultimately be preferable to the slow, convoluted path of federal common law. This Comment then proposes specific revisions that should be part of any future legislative attempts to reform litigation under the ATS.