Alien Tort Litigation: The Road Not Taken

When the Second Circuit decided in Filartiga v. Pena-Irala that the Alien Tort Statute (ATS) provided a federal forum for international human rights claims, no one would have predicted that thirty-three years later in Kiobel v. Royal Dutch Petroleum Co. the Supreme Court would use the presumption against extraterritoriality to limit those claims. This essay recounts some of the doctrinal developments in alien tort litigation during the intervening thirty-three years. After Filartiga, courts faced a choice whether to apply international law as the rule of decision, or the law of the place where the tort occurred. Courts chose the international law road, with U.S. law providing the cause of action and the rules for damages. The Supreme Court ratified this choice in Sosa v. Alvarez-Machain, clarifying that the cause of action came not from the ATS itself but from federal common law. In the battles over aiding and abetting liability that followed, plaintiffs argued that federal common law should govern just about every issue of ATS litigation except the initial violation of international law, while defendants and the Bush Administration argued that the presumption against extraterritoriality should apply to the federal common law cause of action, the position the Supreme Court accepted in Kiobel. This essay argues that the early decisions to apply international law rather than the lex locus delicti as the rule of decision in alien tort litigation ultimately provided the doctrinal hook for the Supreme Court to restrict alien tort suits with the presumption against extraterritoriality. It also glances briefly down the road not taken