The Shadow of Kiobel and Jesner: An Examination of the Alien Tort Statute and Bringing It Back into the Light
The Alien Tort Statute ("ATS") was enacted in 1789 and for roughly two centuries seemed fated to go down as a curious historical footnote. Invoked only a handful of times over the ensuing two hundred years, the ATS had new life breathed into it in 1980 with the Second Circuit case of Filartiga v. Pena-Irala. The ATS subsequently became a vehicle for victims of human rights violations seeking redress in U.S. courts. But while Filartiga represented a small window of opportunity opening for human rights activists, this utility would prove short-lived as the Supreme Court quickly began to curtail the applicability of the ATS: first putting its hand on the window sill with the case of Sosa v. Alvarez-Machain, then slamming it closed in Kiobel v. Royal Dutch Petroleum Co., and finally bolting the lock and throwing away the key recently in Jesner v. Arab Bank, PLC. This constant chipping away at the ATS has sharply limited the circumstances in which it can be invoked, rendering it virtually toothless. This Note argues that the Court's interpretations of the ATSpost-Sosa is both flawed and at odds with its underlying intent. It will contrast the workable standard laid out by the Sosa Court with the subsequent brittle constructions of the Kiobel and Jesner Courts. This Note posits that the standard imposed by the Court in Sosa is best interpreted using Justice Breyer's concurrence from Kiobel and Justice Sotomayor's dissent in Jesner and calls for the adoption of a synthesis of these as the best interpretation of the ATS going forward. Specifically, this hybrid test interprets the first prong of Sosa through Justice Sotomayor's Jesner dissent and relies on customary international law to inform courts as to what recognized norms are. It interprets the second prong of Sosa through Justice Breyer's Kiobel concurrence and allows courts to use their discretion in determining whether enforcement of these norms is appropriate, viz, does it concern distinct American interests. This Note will show that this hybrid test is an appropriatelyc onstrainedi nterpretationo f the ATS based on its text, history, and intent, and will also apply this hybrid test to two recent cases to demonstrate its viability and applicability in practice.
Jeffrey J. Grosholz,
The Shadow of Kiobel and Jesner: An Examination of the Alien Tort Statute and Bringing It Back into the Light,
46 Fla. St. U. L. Rev.