Kedar S. Bhatia (Student-at-law, Emory University School of Law) has posted ”Reconsidering the Purely Jurisdictional View of the Alien Tort Statute”, Emory International Law Review, 2013, forthcoming/Emory Public Law Research Paper. Here’s the abstract:
The Alien Tort Statute is a remarkable provision. This thirty-three word statute lay dormant for nearly two centuries but now allows federal courts to hear claims for violations of the law of nations stemming from behavior anywhere in the world. Such an extraordinary interpretation was far from inevitable and remains on unsteady footing.
This article argues that the Statute should be read as purely jurisdictional, rather than as a hybrid provision granting both jurisdiction and a cause of action. In contrast to the current hybrid model, a strictly jurisdictional view of the Alien Tort Statute would provide a manageable framework for expanding the scope of the statute. Rather than requiring courts to first measure the specificity of international law and then gauge the practical consequences of recognizing a new cause of action, the jurisdictional view would require Congress to make those difficult, complex, and weighty policy decisions. A purely jurisdictional view of the statute adheres more closely to well-established views toward federal common law and also patches many of the problems that have arisen in applying the statute.
Download a pdf version of the article via SSRN here.
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Antonin I. Pribetic
