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THE NEW FEDERAL COMMON LAW OF TORT REMEDIES
FOR VIOLATIONS OF INTERNATIONAL LAW
William R. Casto*
I. INTRODUCTION
The Supreme Court's 2004 decision in Sosa v. Alvarez-Machain
established an analytical watershed for litigation under the Alien Tort Statute
("ATS" or "§ 1350,,).2 Originally enacted in 1789, 3 the ATS's current
codification vests the federal district courts with jurisdiction "of 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." 4 The provision languished in virtually total
obscurity until the United States Court of Appeals for the Second Circuit
held in 1980 that the ATS allowed an alien who was tortured in a foreign
country to sue his torturer in the United States.5 Since that time the federal
courts have struggled with the Statute's meaning in a variety of contexts.
Until last year, conjectures about the Statute's meaning were marked by
wide-ranging explorations of legal history and international law. 6 Now all
*
Allison Professor of Law, Texas Tech University. I presented a preliminary version
of this Essay at the Cornell Law School as part of the Berger International Speaker Series. I
thank Larry Bush and the other participants in that series for their comments. I especially wish
to thank Beth Stephens for her insightful comments on earlier drafts of this Essay.
1. 542 U.S. 692 (2004).
2. 28 U.S.C. § 1350 (2000).
3. Judiciary Act of 1789, ch. 20, § 9(b), 1 Stat. 73, 77.
4. 28 U.S.C. § 1350.
5. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). Filartigaitself was a wrongful
death action brought by the decedent's family against the torturer. Id. at 878.
6. One of the leading analyses was my article, William R. Casto, The Federal Courts'
Protective Jurisdictionover Torts Committed in Violation of the Law of Nations, 18 CONN. L.
REV. 467 (1986) [hereinafter Casto, Law of Nations], which the Justices in Sosa cited and
relied upon six times. For useful compilations of the vast literature, see RICHARD H. FALLON,
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analyses of ATS litigation must flow from Sosa's guidelines. This Essay
provides an analytical roadmap for future ATS litigation.
The Sosa case stemmed from the federal government's desire to
prosecute a Mexican doctor. The government believed that Dr. Humberto
Alvarez-Machain had participated in the torture and murder of a Federal
Drug Enforcement Administration ("DEA") agent in Mexico and therefore
sought to extradite the doctor to the United States.7 When these efforts failed,
the government hired a gang of Mexican bounty hunters, including Jose
Francisco Sosa, to kidnap Dr. Alvarez-Machain and bring him to the United
States for trial.8 Sosa's gang seized the doctor and spirited him across the
border where they handed him over to federal authorities. 9 When the case
came to trial, however, the government was unable to present any evidence
of the defendant's guilt. At the conclusion of the prosecution's case, the trial
court entered a judgment of acquittal. °
Dr. Alvarez-Machain subsequently sued the United States and his
abductors under the Federal Tort Claims Act ("FTCA") and the ATS. 11 The
lower federal courts held for the doctor on both claims,1 2 but the Supreme
Court disagreed. The Court unanimously held that the FTCA's waiver of
sovereign immunity does not extend to claims based upon an injury suffered
in a foreign country and therefore reversed the lower court decision
regarding the United States' liability. 13 The Court also reversed as to the
ATS claim, holding that the4 kidnapping was not a violation of clearly
established international law.'
755-58 (5th
ed. 2003); THE ALItN TORT CLAIMS AcT: AN ANALYTICAL ANTHOLOGY 405-31 (Ralph G.
Steinhardt & Anthony D'Amato eds., 1999). For an excellent discussion of recent litigation,
see Beth Stephens, Upsetting Checks and Balances: The Bush Administration's Efforts to
Limit Human Rights Litigation, 17 HARv. HuM. RTs. J. 169 (2004).
7. Sosa v. Alvarez-Machain, 542 U.S. 692, 697-98 (2004).
8. Id. at 698.
9. Id.
10. See id. at 698 (civil action); United States v. Alvarez-Machain, 504 U.S. 655, 657
(1992) (criminal prosecution).
11. Sosa, 542 U.S. at 698-99. The FTCA is an extensive waiver, subject to important
restrictions, of the United States' sovereign immunity. 28 U.S.C. § 1346(b) (2000).
12. Alvarez-Machain v. United States, 266 F.3d 1045 (9th Cir. 2001), reh'g en banc,
331 F.3d 604 (2003), rev'd sub nom. Sosa v. Alvarez-Machan, 542 U.S. 692 (2004).
13. Sosa, 542 U.S. at 712.
14. Id. at 738.
JR. Er AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM
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FEDERAL COMMON LAW OF INTERNATIONAL TORTS
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Until Sosa, some believed that § 1350 created a federal tort action for
violations of international law.'
5
The Court, however, unanimously held that
the statute vests federal trial courts with subject matter) urisdiction but stops
short of actually creating a statutory cause of action.' In other words, the
provision means what it so obviously says: it "'clearly does not create a
statutory cause of action,' and . . . the contrary suggestion is 'simply
frivolous."",17 The Court agreed that there is a tort remedy for violations of
international law but explained that the federal courts, not international law,
the creation of the cause of action is an
are the source of the remedy-that
8
exercise in judicial lawmaking.'
Ordinarily the Supreme Court is loath to create federal common law
causes of action and has deferred to Congress.' 9 The Sosa Court expressly
recognized the tradition that "a decision to create a private right of action is
one better left to legislative judgment." 20 The Court, however, concluded that
Congress has tacitly approved judicially created tort remedies for violations
of international law.2' Although the ATS does not, itself, create a statutory
cause of action, the Court reasoned that Congress must have assumed that the
15. See, e.g., In re Estate of Marcos, 25 F.3d 1467, 1474-76 (9th Cir. 1994); Forti v.
Suarez-Mason, 672 F. Supp. 1531, 1539-40 (N.D. Cal. 1987).
16. Sosa, 542 U.S. at 713.
17. Id. (quoting Casto, Law of Nations, supra note 6, at 479-80); accord 542 U.S. at 743
(Scalia, J., concurring).
18. Sosa, 542 U.S. at 729-31. In a concurring opinion, Justice Scalia concluded that
conceptualizing ATS claims as arising under federal common law renders § 1350 superfluous
because the existing general federal question statute, 28 U.S.C. § 1331 (2000), already vests
the federal courts with jurisdiction over suits arising under federal law. Sosa, 542 U.S. at 745
n.* (Scalia, J., concurring). Although the enactment of § 1331 without an amount in
controversy limitation has significantly diminished § 1350's importance, the ATS still serves
several purposes. First, the ATS remains specific evidence that Congress has endorsed the
concept of a common law tort action for violations of international law. Second, the word
"tort" was inserted into § 1350 to preclude jurisdiction over contract actions. See Casto, Law
of Nations, supra note 6, at 504-08; accord Valanga v. Metro. Life Ins. Co., 259 F. Supp. 324,
327 (E.D. Pa. 1966). Given this history, § 1350 could be seen as precluding § 1331
jurisdiction over an action for breach of contract in violation of international law. Given the
conceptual difficulties with the notion of a private contract action arising under international
law, this purpose is more amusing than significant. Finally, § 1350 could be read as vesting
the federal courts with protective jurisdiction over claims arising under state law or the law of
a foreign country. See Casto, Law of Nations, supra note 6, at 511-25; see also William R.
Casto, Regulating the New Privateersof the Twenty-First Century, 37 RUTGERS L.J. 671, 68995 (2006) [hereinafter Casto, Regulating the New Privateers](discussing such claims).
19. See, e.g., United States v. Standard Oil Co. of Cal., 332 U.S. 301, 302 (1947);
accord Sosa, 542 U.S. at 725-28.
20. 542 U.S. at 727.
21. Id. at 729-31.
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statute would serve some purpose.22 The reasonable assumption is that
Congress believed that the common law provides private remedies for some
violations of international law.
Further evidence of Congress's approval of a judicially-created tort
remedy is found in the Torture Victim Protection Act of 1991 ("TVPA").24
All modem ATS litigation stems from the 1980 decision in Fildrtiga v.
Pefia-Irala,25 which held that a tort remedy is available in federal court for
acts of torture that violate international law.2 6 In enacting the TVPA,
Congress approved, codified, and elaborated upon this new tort remedy.
Rather than rejecting Fildrtiga,the Congress
in effect endorsed Fildrtiga's
27
common law remedy by codifying it.
Sosa squarely holds that ATS litigation is based upon a federal common
law cause of action and involves judicial lawmaking. 28 Now the courts will
have to use Sosa's guidance in determining the scope of this cause of action.
The Court clearly stated that creating the cause of action involves judicial
discretion, and the Sosa opinion outlines a series of factors that will constrain
and guide the courts' discretionary lawmaking.2 9
This Essay is an analytical roadmap for future ATS litigation rather than
a comprehensive analysis of all issues that may arise. A comprehensive
analysis would require a book-length treatment or a series of lengthy law
review articles. Rather than embarking upon an exhaustive-and inevitable
exhausting-treatment of all past and future ATS litigation, this Essay
provides an overview of the Sosa decision's guidelines and suggests an
approach to understanding the interrelationships among federal statutory law,
federal common law, and international law in ATS litigation.
II. HYBRID OR MIXED FEDERAL CAUSES OF ACTION
The new cause of action envisioned by Sosa is unintelligible unless the
well-established distinction between rights and remedies is kept clearly in
22. Id. at730-31.
23. Id. at 720-21.
24. Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note
(2000)).
25. 630 F.2d 876 (2d Cir. 1980).
26. Id. at 887.
27. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 104-05 (2d Cir. 2000); Kadic v.
Karadzic, 70 F.3d 232, 241 (2d Cir. 1995).
28. 542 U.S. at 729-31.
29. Id. at 725-28.
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mind. The concept of a cause of action requires a plaintiff to establish that a
defendant has violated a legal norm designed to protect the plaintiff and that
the plaintiff is entitled to a remedy, which typically will be damages in ATS
litigation. Under this traditional dichotomy, the norm that is enforced in ATS
litigation comes from international law and therefore is to a significant
degree beyond the federal courts' lawmaking powers. International law
comes from treaties and the practice of nations. It is not made by any
particular country's judicial system. Sosa's pronouncement that the federal
courts have discretion to create or deny a cause of action relates to the
remedy rather than the norm.
There has been a tendency to view ATS litigation as centered on
international law, but Sosa teaches that the cause of action also and perhaps
more significantly involves a purely domestic tort remedy. The Court's
analysis directs us to traditional, well-established concepts of domestic,
federal common law. Henry Hart and Herbert Wechsler taught us long ago
that federal law generally operates to supplement preexisting bodies of law.3 °
In particular, federal common law frequently operates interstitially, and the
result frequently is a mosaic of different rules of decision originating from
different lawmakers. In a suit against a federal officer for violation of state
tort law, the elements of the plaintiff s claim are governed by state law while
the defense of official immunity is controlled by federal common law.3 1
Likewise, a state cause of action for libel may be limited by a federal defense
based upon the Constitution's First and Fourteenth Amendments.32 In this
litigation some of the substantive rules of decision are governed by state law
while others are controlled by federal law.
A. Analogous Mixed Federal Causes of Action
The mosaic pattern is not limited to simple interstitial federal defenses
that limit state causes of action. A plaintiff's case in chief may also be a
function of two different bodies of law. There are those rare cases in which a
state cause of action has a federal element embedded in it as an element of
30.
HENRY M.
HART, JR. & HERBERT WECHSLER, THE FEDERAL COURTS AND THE
FEDERAL SYSTEM 435 (1953); accordFALLON E AL., supra note 6, at 494-95 (quoting the first
edition of the Hart & Wechsler text).
31. Howard v. Lyons, 360 U.S. 593, 597 (1959) (civil liability); Tennessee v. Davis,
100 U.S. 257, 271 (1880) (criminal prosecution).
32. New York Times Co. v. Sullivan, 376 U.S. 254, 264 (1964). Similarly, in a wellknown case, the plaintiff pleaded a non-federal, common law action for breach of contract that
was possibly limited by a federal statutory defense. Louisville & Nashville R.R. v. Mottley,
211 U.S. 149, 151-52 (1908).
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the plaintiffs prima facie case.33 There are, however, far more common
examples that are quite germane to ATS litigation. The most common is §
1983, which provides remedies for violations of the United States
Constitution. 34 Section 1983's sole purpose is to authorize a remedy for
rights that already exist under the Constitution. In the ubiquitous litigation
under § 1983, the right or norm comes from the Constitution, but the remedy
is a creature of statutory law. The parallel between § 1983 litigation and ATS
litigation is clear. In each case the norm to be remedied comes from one
body of law-the Constitution in one; international law in the other-while
the remedy comes from a different source-the Congress in § 1983
litigation; the federal courts in ATS litigation. When the norm and remedy
are joined, a cause of action is created.
The parallel between the § 1983 and ATS litigation points to a more
pertinent example of a federal cause of action with a distinctive mosaic
pattern. In Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics,35 the Court fashioned a judicial remedy for a preexisting right
created by another body of law.36 Like in ATS litigation, the norm in Bivens
that made the defendant's conduct illegal came from one body of law, the
Constitution, and the federal judiciary supplied the remedy through judicial
legislation. Although there has been some confusion over the years, 37 the
Bivens remedy is best conceptualized as a federal common law remedy. Like
the tort action for violations of international law, the federal courts exercise
discretion to create a remedy for a norm found in another body of law.
Moreover, like the tort action for violations of international law, the remedy
fashioned by the courts is subject to congressional control.38
33. See, e.g., Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 125 S. Ct. 2363,
2367 (2005); Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 805 (1986); Smith v.
Kan. City Title & Trust Co., 255 U.S. 180, 199 (1921).
34. 42 U.S.C. § 1983 (2000).
35. 403 U.S. 388 (1971).
36. Id. at 387 (holding that petitioner was entitled to recover money damages for a
violation of the Fourth Amendment).
37. Compare Henry P. Monaghan, Foreword: ConstitutionalCommon Law, 89 HARV.
L. REV. 1, 9-15 (1975) (acknowledging the existence of federal common law), with Thomas C.
Schrock & Robert C. Welsh, Reconsidering the Constitutional Common Law, 91 HARV. L.
REv. 1117, 1120-26 (1978) (arguing that Monaghan's approach has no basis in the
Constitution).
38. The constitutional sticking point for Bivens remedies is whether Congress has
authority to bar a remedy in situations where no other remedy is available.
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B. InternationalLaw or OrdinaryFederal Common Law?
Because ATS litigation involves a mosaic of international law and purely
domestic common law rules of decision, questions inevitably will arise as to
whether particular issues are governed by international law or by domestic
rules legislated by federal judges. Fortunately, there is a simple and easily
understood answer to this potentially complex question. The norm that a
defendant is alleged to have violated comes from international law, and
domestic law supplies all other rules of decision.
The distinction between international law and domestic law needs some
39
clarification. Notwithstanding some ingenious arguments to the contrary,
there is little doubt that international law is incorporated into United States
domestic law as a form of federal common law. 4° Certainly, the Court in
Sosa assumed that this is the case. 41 Therefore the international norms that
are essential to the existence of a cause of action in ATS litigation are
technically classified as a type of domestic law. But the branch of federal
common law that incorporates international law is significantly different
from other types of federal common law. Today, the process of making
common law generally and federal common law specifically is viewed as a
39. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Customary InternationalLaw as
Federal Common Law: A Critique of the Modem Position, 110 HARv. L. REv. 815, 844-70
(1997) (asserting that customary international law should not be treated as federal common
law); Earnest A. Young, Sorting out the Debate over Customary InternationalLaw, 42 VA. J.
INT'L L. 365 (2002) (asserting that customary international law should retain the status of
"general law").
40. When courts in the United States apply customary international law, the rule of
decision should and is classified as federal common law. The Paquete Habana, 175 U.S. 677,
700 (1900); see also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425 (1964);
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §§ 111, 112(2) (1987) [hereinafter
RESTATEMENT OF FOREIGN RELATIONS]. The main objection to the ingenious arguments that
reject the conceptualization of international law as federal common law is that the arguments
would significantly transfer control of international law from the federal government, which is
responsible for foreign relations, to fifty different states. See Harold Hongju Koh, Is
International Law Really State Law?, 111 HARv. L. REv. 1824, 1827-29 (1998). Professor
Young's proposal, see Young, supra note 39, to solve those problems using a comprehensive
system of federal choice-of-law principles is quixotic. Cf. Daniel J. Meltzer, Customary
InternationalLaw, ForeignAffairs, and Federal Common Law, 42 VA. J. INT'L L. 513 (2002)
(presenting a sympathetic critique of Young's proposal).
41. Sosa v. Alvarez-Machain, 542 U.S. 692, 728-31 (2004). Some have criticized Sosa
for failing to understand that customary international law is not federal common law. See
Julian Ku & John Yoo, Beyond Formalism in ForeignAffairs: A FunctionalApproach to the
Alien Tort Statute, 2004 Sup. CT. REv. 153, 170-76. Like Percy Shelley's barrister brother
Bernard, these critics "look before and after [Sosa] and pine for what is naught."
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legislative activity. When the federal courts pronounce or elaborate upon
federal common law, they are literally making legal rules-they are
exercising legislative authority. The federal courts, however, have no
legislative authority to make international law. The rules of international law
come from treaties and the practice of nations and cannot be ordained by the
domestic court of any one nation.42 When a federal court applies
international law as federal common law, the court does not make
international law; rather it discovers pre-existing rules that have been
"'legislated' through the political actions of the governments of the world's
states." 43
The federal courts' administration of state law under the Erie doctrine44
presents a useful model for thinking about international law as federal
common law. Under the Erie doctrine, a federal court applying state law
lacks authority to make state law and instead tries to approximate or discover
the applicable state rule of decision. When state law is applied by state
courts, federal judicial opinions may be viewed as persuasive, but are in no
way binding upon state courts. Any state court may freely reject any federal
court's opinion regarding state rules of decision. Similarly, when nations
apply international law, federal judicial opinions are in no way binding
precedent. Of course, under the Erie doctrine, a federal court decision on the
content of state law is binding upon lower federal courts within the deciding
court's appellate jurisdiction. 45 By classifying international law as federal
common law, the Supreme Court's decisions become binding upon all state,
as well as federal, courts.
In ATS litigation, the most obvious divide between international and
pure United States domestic law is the separation of substance from
procedure. Regardless of the nature of the plaintiffs claim, the federal
courts-as do all courts-always apply their own procedural rules. Certainly
the Federal Rules of Civil Procedure are fully applicable,4 6 but this does not
exhaust procedural issues. Statutes of limitation,47 forum non conveniens,48
42. See Louis Henkin, InternationalLaw as Law in the United States, 82 MICH. L. REv.
1555, 1561-62 (1984).
43. Id. at 1562.
44. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
45. See, e.g., Spearman Indus., Inc. v. St. Paul Fire & Marine Co., 139 F. Supp. 2d 943,
947 (N.D. Ill. 2001); Paul Revere Life Ins. Co. v. McPhee, 144 F. Supp. 2d 1375, 1379 (S.D.
Fla. 2001).
46. See Hanna v. Plumer, 380 U.S. 460 (1965), in which the Court in effect held that
arguably procedural rules promulgated under the Rules Enabling Act are the supreme law of
the land. Id. at 473-74.
47. See infra note 141 and accompanying text.
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and the right to trial by jury49 also will be controlled by purely domestic
federal law. In addition to the longstanding tradition that a forum always
applies its own procedural rules, the concept of a private civil action in
which one person sues another for violation of international law is virtually
unknown to international law. Therefore, international law usually is silent
on procedural issues that arise in private litigation. If, however, international
law clearly obligates the United States to apply a particular rule of decision
in private litigation, 50 the courts-absent unusual circumstanceS5-should
apply the obligatory rule. In addition, considerations stemming from
international law may properly influence the courts' resolution of particular
issues otherwise controlled by domestic law.52
Turning from procedure to substance, the norm for which a remedy is
provided in ATS litigation is clearly governed by international law. All
questions as to whether the defendant has acted unlawfully must be answered
by recourse to rules of decision found in international law. When a court
elaborates upon the existence and scope of the norm that is being enforced,
the court is not engaging in judicial lawmaking. Rather, the court is simply
discovering or expounding norms that already exist in international law. The
Sosa Court's requirement that the international norm must be generally
accepted by the civilized world 53 gives practical meaning to this distinction.
ATS litigation, however, may present a number of substantive issues that do
not bear on the lawfulness of the defendant's conduct. The clearest example
is whether a private damage remedy is available. The Sosa Court expressly
held that the creation of a private damage remedy is an act of judicial
48. The availability of forum non conveniens does not mean that a tort claim should be
automatically dismissed. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 100 (2d Cir.
2000); Jota v. Texaco, Inc., 157 F.3d 153, 159 (2d Cir. 1998).
49. Cf Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525,538-39 (1958).
50. The procedural defenses of diplomatic immunity and head of state immunity come
from international law and are fully applicable in ATS litigation. See, e.g., Tachoina v. United
States, 386 F.3d 205, 220-21 (2d Cir. 2004), petitionfor cert. filed, 74 U.S.L.W. 3425 (U.S.
Jan. 12, 2006) (No. 05-879).
51. For example, an act of Congress rejecting an obligatory rule of international law
takes precedence over the rejected rule. Of course, the congressional action would place the
United States in violation of international law.
52. In an appropriate case, a federal court should consider international jurisdictional
principles. See RESTATEMENT OF FOREIGN RELATIONS, supra note 40, § 42 1. In addition, the
United States' interest in participating in an international community governed by
international laws might properly weigh in the decision of some federal procedural matters.
See Wiwa, 226 F.3d at 108 (forum non conveniens); Presbyterian Church of Sudan v.
Talisman Energy, Inc., 244 F. Supp. 2d 289, 339-40 (S.D.N.Y. 2003).
53. See infra notes 61-97 and accompanying text.
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lawmaking.54 The tort remedy in ATS litigation does not come from
international law. It is pure domestic law.
Other issues of substantive law may arise that do not involve the
question of whether the defendant's conduct violates international law.
Certainly analogous issues arise in Bivens litigation. By way of illustration, a
federal officer who has violated the Constitution may nevertheless avoid a
judgment for damages if the officer is entitled to the defense of official
immunity.55 In Bivens cases, the violation of the constitutional norm and the
availability of the official immunity defense involve two entirely different
rules of decision. The defense does not make lawful what would otherwise
be unlawful. The defense simply limits the damage remedy. 56 Presumably a
defense of official immunity would be available in ATS litigation, and the
defense's scope would be a question of purely domestic, federal common
law.57 There are, of course, other issues separate and independent from the
international norm to be remedied, and these issues inevitably will arise in
ATS litigation. Is vicarious liability under the doctrine of respondeat
superior available? 58 Is a wrongful death action available? Does the action
survive the defendant's death? The possible issues are legion, and the federal
courts should draw upon all the usual resources of the common law to
fashion appropriate rules of decision.
The courts should not wear blinders in their search for wisdom.
Principles of international law may provide valuable guidance and insight.
American courts have always viewed the fashioning of common law
principles as an eclectic process. Courts routinely study precedent and
principles from other jurisdictions. Principles of international law are no
different in this regard from the law of another state. Neither is binding, but
both are informative.
54. Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).
55. Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982).
56. Thus the defense is not available in suits for injunctive relief. See Sup. Ct. of Va. v.
Consumers Union of the U.S., Inc., 446 U.S. 719, 735-36 (1980).
57. This is not to say that the federal defense of official immunity should be adopted en
masse in ATS litigation. The absolute immunity of legislators is based in part upon principles
of separation of powers that are irrelevant to a suit against foreign officials. The absolute
immunity of judges is based in part upon American lawmakers' intimate, detailed, and
intuitive understanding of the myriad formal, informal, public, and private limitations that
restrain American judges in the conduct of judicial business. Judges in foreign countries are
subject to different constraints.
58. See Casto, Regulating the New Privateers,supra note 18, at 697-700.
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III. SPECIAL FACTORS COUNSELING HESITATION
In fashioning Bivens remedies for constitutional torts, the Court has
noted the importance of "special factors counseling hesitation in the absence
of affirmative action by Congress. '59 Because ATS litigation in Sosa's wake
is so obviously analogous to Bivens litigation, the same caution is pertinent
to crafting tort remedies for violations of international law. Much of the Sosa
opinion is devoted to outlining a series of special factors counseling
hesitation. 6°
A. The Nonns to Be Enforced
In Sosa, the Court stated that when the ATS was originally enacted in
1789, a tort remedy was available for "violation of safe conducts,
infringement of the rights of ambassadors, and piracy." 61 Even the most
inveterate opponents of the ATS tort remedy seem to agree that these three
activities outlawed by international law centuries ago remain actionable
today.6 2 Of course if ATS litigation were confined to these ancient wrongs,
the tort remedy would be little more than an antiquarian oddity. Except for
piracy these three obscure norms are seldom breached today. One suspects as
a practical matter that a civil tort judgment against a pirate would be virtually
impossible to enforce.63 Therefore pirates' transgressions against
international
law are remedied as a practical matter by criminal-not civil64
law.
Over the last two centuries, new rights under international law have
emerged to supplement the original trinity of safe conducts, ambassadors,
and piracy. Take the case of torture. Traditionally, if the agents of one
sovereign caused damage to the subject of another, the injury might be
viewed as a violation of international law, but the harm under international
59. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
396(1971).
60. See Sosa v. Alvarez-Machain, 542 U.S. 692, 725-28 (2004).
61. Id. at 715 (citing 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 68
(1769)); see also id. at 715-24 (discussing other sources).
62. Cf. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 813-14 (D.C. Cir. 1984)
(Bork, J., concurring). Apparently Justice Scalia does not disagree. See Sosa, 542 U.S. at 729
(Scalia, J., concurring).
63. In any event, every conceivable act of piracy would be actionable as a simple tort in
admiralty. See Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 23 (2004).
64. Likewise, a terrorist who assassinates an ambassador is-as a practical matter-an
unlikely target for civil litigation.
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law was to the sovereign and not to the individual.65 Today, however, a
government agent who tortures an individual violates the individual's rights
under international law and is subject to personal liability for violating
international law. The federal courts have so held,66 and Congress has
concurred.67 In the wake of Sosa, the federal courts will have to determine
what other new principles of international law warrant the creation of a
private tort remedy. The Sosa Court directed that in making this
determination, "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 a specificity comparable to the features of
the eighteenth century paradigms universally recognized., 68 The judicial
task ahead is to determine which evolving individual rights under
international law have the requisite acceptance and specificity.
1. "Accepted by the Civilized World"
Neither the Supreme Court nor any other domestic court in the world has
unilateral authority to ordain principles of international law. International
law is an amorphous body of principles found in specific treaties and
international custom. 69 The Supreme Court is at most a comparatively minor
participant in the process of international lawmaking. Its pronouncementslike those of any other high court in the world-merely contribute to the
ongoing process of identifying and building international custom. Because
much of international law is based upon amorphous custom, there is a
significant possibility that a particular domestic court's pronouncement of a
principle of international law may be idiosyncratic or erroneous. 70 At best, an
idiosyncratic but perhaps groundbreaking judicial pronouncement would be
evidence of a state practice that might develop into a new custom that
65. Cf Mavrommatis Palestine Concessions (Greece v. Gr. Brit.), 1924 P.C.I.J. (ser. A.)
No. 2, at 6 (Aug. 30), available at http://www.worldcourts.com/pcij/eng/decisions
/1924.08.30 mavrommatis/; see also infra notes 68-72 and accompanying text.
66. See Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980); see also RESTATEMENT
OF FOREIGN RELATIONS, supra note 40, § 702(d).
67. See Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73
(1992) (codified at 28 U.S.C. § 1350 note (2000)).
68. Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).
69. Statute of the International Court of Justice, art. 31, June 26, 1945, 59 Stat. 1031,
1060, 33 U.N.T.S. 993; accord RESTATEMENT OF FOREIGN RELATIONS, supra note 40, § 102.
70. In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), the Court expressed
doubt at to whether a United States court's ruling on the international law governing
expropriations would be persuasive to the rest of the world. Id. at 434-35.
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eventually might be accepted as international law by the international
community. This uncertainty and lack of ultimate lawmaking authority
should counsel hesitation in determining that a particular principle of
international law is sufficiently established to warrant the creation of a tort
remedy.7'
a. Individual Rights Under International Law
The task of identifying norms of international law that are "accepted by
the civilized world" is complicated by the fundamental paradigm that for
some two centuries international law has regulated relations between and
among nations and typically has not addressed private relationships. Under
this "traditional view . . . international law . . . establishes substantive
principles for determining whether one country has wronged another., 72 The
Court has now ordained that a tort remedy will be available only for
violations of accepted norms of international law, but most of these norms
neither impose private duties nor create private rights. For example, the
original criminal prosecution against Dr. Alvarez-Machain was for his
alleged participation with a group of criminals in the torture and death of an
American law officer.7 3 Torture is clearly proscribed by international law,
but the proscription is directed at nations-not private individuals. The
victim's torturers, who were simply common criminals, clearly violated the
domestic laws of Mexico and the United States, but they did not violate
international law. 74 Similarly, all international lawyers-save possibly an
advisor bent on ignoring the obvious75 -would agree that the United States'
action in hiring bounty hunters to kidnap a Mexican citizen in Mexico and
spirit him across the border was a blatant violation of international law.76 The
71. See id. at 427-30 (expressing great reluctance to enforce a principle of international
law whose legitimacy was vigorously contested by many nations).
72. Id. at 422.
73. Sosa, 542 U.S. at 697-98.
74. See Kadic v. Karadzic, 70 F.3d 232, 243-44 (2d Cir. 1995).
75. For the dynamics of the advisory process that occasionally lead government
attorneys to embrace dramatically overreaching legal analyses, see generally William R.
Casto, Executive Advisory Opinions and the Practiceof JudicialDeference in Foreign Affairs
Cases, 37 GEo. WASH. INT'L L. REv. 501 (2005).
76. See Michael J. Glennon, Comment, State-Sponsored Abduction: A Comment on
United States v. Alvarez-Machain, 86 AM. J. INT'L L. 746, 746 (1992). But see FBI Authority
to Seize Suspects Abroad: HearingBefore the Subcomm. on Civil and ConstitutionalRights of
the H. Comm. on the Judiciary, 101st Cong. 26-42 (1st Sess. 1989) (statement of Abraham D.
Sofaer, Legal Adviser, U.S. Dep't of State). When the legality of Dr. Alvarez-Machain's
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norm that clearly was violated, however, was Mexico's sovereign right under
international law in respect of its territory. The blatant assault upon Mexican
sovereignty was a harm to Mexico-not to the individual. Therefore Dr.
Alvarez-Machain would not be a proper party to seek a personal remedy for
the violation of Mexican sovereignty.77
In addition to the trinity of safe conducts, ambassadors, and piracy;
contemporary international law protects individuals from state-sanctioned
torture. 78 Today's international norms also surely protect individuals from
extrajudicial killing 79 and slavery. 80 Probably genocide, prolonged arbitrary
detention, and systematic racial discrimination are also international norms
that protect individual rights. 8 Whether these three and other rights82 are
sufficiently established under international law to warrant a common law
remedy will have to be determined by the courts using the Sosa guidelines.
kidnapping was litigated in his criminal prosecution, the Supreme Court restricted itself to the
narrow question of whether the abduction technically violated the extradition treaty between
the United States and Mexico. United States v. Alvarez-Machain, 504 U.S. 655,662 (1992).
77. Alvarez-Machain v. United States, 331 F.3d 604, 610 (9th Cir. 2003) (en banc),
rev'd sub nor. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The Sosa Court did not
consider whether the United States' violation of Mexico's sovereignty should be remedied by
a private tort action. Sosa, 542 U.S. at 735 n.24. In the Sabbatino case, the Court explained
that under the traditional view of international law, with "its peculiar nation-to-nation
character[,] the usual method for an individual to seek relief is to exhaust local remedies and
then repair to the executive authorities of his own state to persuade them to champion his
claim in diplomacy or before an international tribunal." 376 U.S. at 422-23.
78. See supra notes 66-67 and accompanying text. Of course if one nation tortures the
citizen of another nation, the tortured citizen's country would also have a claim under
international law.
79. See RESTATEMENT OF FOREIGN RELATIONS, supra note 40, § 702; accord Torture
Victim Protection Act of 1991, Pub. L. No. 102-256, § 2(a)(2), 106 Stat. 73, 73 (1992)
(codified at 28 U.S.C. § 1350 note (2000)).
80. See RESTATEMENT OF FOREIGN RELATIONS, supra note 40, § 702; accord Doe I v.
Unocal Corp., 395 F.3d 932, 945-47 (9th Cir. 2002). Slavery in most contexts has involved
one private party enslaving another. When British and American frigates patrolled the Atlantic
in the nineteenth century, they were not doing so to protect British and American sovereign
interests. Nor were they acting against foreign governments. They were freeing slaves because
the slave trade was an affront to mankind. They were providing a remedy for slaves who were
in thrall to private miscreants.
81. RESTATEMENT OF FOREIGN RELATIONS, supra note 40, § 702.
82. War crimes, crimes against humanity, and cruel, inhumane or degrading treatment
come to mind.
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b. Individual Obligations or Duties Under International Law
In addition to limiting plaintiffs' rights, the paradigm that has restricted
most of international law to regulating relations between nations also limits
the obligations of defendants. ATS litigation typically involves a claim that
an individual defendant has violated a norm, but most norms of international
law impose duties or obligations upon states-not individuals. The original
trinity of safeguards, ambassadors, and piracy, in addition to creating
personal-in contrast to national-rights, imposed duties on private
individuals.8 3 Some of the new norms of international law create personal
rights, but the consequent duties or obligations are imposed upon
governments-not individuals. 84 The most obvious example is torture. Every
day and in every country, private citizens practice the most heinous acts of
torture on other private citizens. The more odious forms of physical child
abuse come readily to mind. International law, however, does not address
this common form of outlawry.
Although most duties or obligations under international law are imposed
upon nations rather than individuals, there is an obvious exception. After all,
nations are legal fictions that cannot act except through human agents.
Therefore, individuals who are acting as government officials or agents are
subject to their nation's obligations under international law. When Americo
Pefia-Irala tortured Joelito Fildrtiga to death in Paraguay, the federal court in
New York held that Pefia-Irala violated international law and was subject to
a private tort action.8 5 Pefia-Irala was a government official-the Inspector
General of Police in Asuncion-but the same principle of individual liability
should apply to a private individual or corporation that engages to act on
behalf of a government but that technically does not become a government
official. 86 Under this agency principle, a private contractor like Mr. Sosa and
his gang, who works for the United States outside the United States, could be
held liable in ATS litigation for torture.8 7
83. Slavery, especially the slave trade, is another example of an international norm that
seems to regulate private actors.
84. Bigio v. Coca-Cola Co., 239 F.3d 440, 448 (2d Cir. 2000); Kadic v. Karadzic, 70
F.3d 232, 243 (2d Cir. 1995).
85. Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980); see also supra note 5 and
accompanying text.
86. See generally Casto, Regulating the New Privateers,supra note 18.
87. The federal courts, however, probably will not create a remedy for violations of
international law that take place within the United States. See infra notes 119-32 and
accompanying text.
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Cases may arise in which a private corporation or individual has not
acted as a government's agent but nevertheless has aided or assisted
government officials to violate an individual's rights under international law.
Whether the federal courts should create a tort remedy under these
circumstances against the private entity is problematic. In Central Bank of
Denver, N.A. v. First Interstate Bank of Denver, N.A.,88 a closely divided
Supreme Court refused to extend civil liability under a federal securities act
to aiders and abettors. 89 The precise holding in Central Bank, however, does
not translate easily to ATS litigation, because the Court based its decision on
the interpretation of very specific statutory language. 90 But at a fundamental
level, Central Bank suggests a process for determining whether aiding-andabetting liability is available in ATS litigation. Both the majority and the
dissenters in Central Bank agreed that aiding-and-abetting is a conductregulating norm. 91 In other words, there is no liability unless the aiding-andabetting norm proscribes assisting direct violators of another norm.
Therefore, aiding-and-abetting liability for private persons is inappropriate in
ATS litigation unless a norm of international law forbids private persons to
assist violators.9 2
In ATS litigation, the consequence of defining aiding-and-abetting
liability to require a norm proscribing the rendering of assistance is to require
the courts to find an international law norm directed at mere assistance by
private actors. One might argue for the creation of such a norm, but under
Sosa there must be convincing proof that the norm already exists-that the
nations of the world have already embraced the norm. A strong argument can
be made that existing international law norms outlawing primary activity
also forbid aiding and abetting the primary activity. The international aidingand-abetting principle outlaws giving "practical assistance, encouragement,
or moral support which has a substantial effect on the perpetration of the
[primary] crime. 93 This international rule has been developed in the context
88. 511 U.S. 164(1994).
89. Id. at 191 (five-to-four decision).
90. For this reason, the court's explanation-though probably not the result-in In re
South African Apartheid Litigation, 346 F. Supp. 2d 538 (S.D.N.Y. 2004), is misguided. See
id. at 549-54; see also infra notes 114-18 and accompanying text.
91. See 511 U.S. at 175-78; id. at 201 (Stevens, J., dissenting).
92. Accordingly, arguments that the domestic law of any particular country creates the
aiding-and-abetting norm, see, e.g., Doe I v. Unocal Corp., 395 F.3d 932, 948 (9th Cir. 2002),
should be rejected.
93. Id. at 950 (internal quotation marks omitted) (quoting Prosecutor v. Furundzija, IT95-17/IT, Judgment,
235 (Dec. 10, 1998)); see also Presbyterian Church of Sudan v.
Talisman Energy, Inc., 374 F. Supp. 2d 331, 340 (S.D.N.Y. 2005); In re Agent Orange Prod.
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of international criminal law that is designed to punish conduct and not to
compensate for damage suffered. If the norm is used in a civil tort action, the
requirement of causation may narrow the availability of a damage remedy.
At first glance, the fact that the aiding-and-abetting norm comes from
international criminal law gives pause. Should a rule of criminal law be
adopted as a rule of decision for civil tort liability? The answer to this
initially troubling question lies in Sosa's distinction between international
law norms and domestic law tort remedies. Take the case of genocide. In
both a criminal prosecution before an international tribunal and parallel ATS
litigation in a federal court, the plaintiff must establish that the defendant has
violated an international norm, and the norm is the same in both cases.
However, the remedies are different. The remedy in each case comes from a
different body of law. In the international tribunal, the remedy or punishment
comes from international law, but the remedy in the civil action comes from
purely domestic, federal common law. Therefore, the initially puzzling
problem of providing a civil tort remedy is only problematic if there is a
plausible objection to providing the victim of a crime with a civil tort
remedy.
In the United States, our received tradition is to provide victims who
have suffered an identifiable injury caused by criminal misconduct with a
civil tort remedy. We do this routinely. In part this tradition stems from the
fact that tort law originated as an off-shoot of criminal law.94 More
significantly, the general overlap in the United States between tort norms and
criminal norms is an empirical fact.95 Therefore, judges should routinely
exercise their discretion to provide a civil damage remedy for norms taken
from international law criminal law.96 Providing a civil remedy for
international norms outlawing torture or genocide looks a lot like the
common tort remedy routinely available for battery or intentional wrongful
death. Similarly, the international norm against slavery looks a lot like the
tort norm that forbids false imprisonment. As the Supreme Court noted in the
Liab. Litig., 373 F. Supp. 2d 7, 52-54 (S.D.N.Y. 2005); Presbyterian Church of Sudan v.
Talisman Energy, Inc., 244 F. Supp. 2d 289, 320-24 (S.D.N.Y. 2003); Mehinovic v.
Vuckovic, 198 F. Supp. 2d 1322, 1355 (N.D. Ga. 2002).
94. See DAN B. DOBBS, THE LAw OF TORTS 4 (2000).
95. Although many torts are not crimes (e.g., negligence, defamation, trademark
infringement, etc.), I cannot think of a crime, which harms a specific person, that is not also a
tort. If there are such crimes, they are obscure exceptions that make the general rule.
96. Of course the other considerations discussed in this Article may counsel hesitation.
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Bivens case, "Historically, damages have been regarded
as the ordinary
97
remedy for an invasion of personal interests in liberty."
2. "Defined with a Specificity"
The Court's seemingly additional requirement that the norm to be
remedied should be "defined with a specificity comparable to the features of
the 18th-century paradigms we have recognized" is troubling.98 Any capable
lawyer can spin a complex web of doubt and ambiguity around any cause of
action. Thus the Court has stated and restated that a tort remedy is available
for violations of safe conducts, 99 but many remedial aspects of the tort
remedy for violations of safe conducts are in doubt. Are punitive damages
available?l °° What about the defense of official immunity? What is the
burden of proof, and so forth? The Court, however, linked the idea of
specificity to the norm that has been violated-not to the availability of a
remedy. The Court required that the "norm [must be] defined with . . .
97.
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388, 395 (1971).
98.
Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004). Later in the opinion, the
Court stated that a common law remedy should not be created "for violation of any
international law norm with less definite content and acceptance among civilized nations than
the historical paradigms familiar when § 1350 was enacted." Id. at 732. The Court then cited
by way of example a seventeen-page footnote from an 1820 piracy case. Id. Some now argue
that no ATS remedy should be available unless the particular claim virtually replicates the
crime of piracy, including a requirement that the defendant must-like a pirate-have
renounced the protection of any sovereign. See Eugene Kontorovich, Implementing Sosa v.
Alvarez-Machain: What Piracy Reveals About the Limits of the Alien Tort Statute, 80 NOTRE
DAME L. REv. 111, 132 (2004). Under this view, the Filartigacase was wrongly decided, and
there could be no remedy for attacks on ambassadors or violations of safe conducts. Indeed,
today, the only possible ATS defendants would be modem day pirates and perhaps some
stateless terrorists.
99.
Sosa, 542 U.S. at 724.
100. In my original study, I was quite dubious about the propriety of awarding punitive
damages in ATS litigation. See Casto, Law of Nations, supra note 6, at 477-78. At that time I
uncritically viewed both the norm and the remedy in ATS litigation as international law rules
of decision. Now that Sosa has clarified the distinction between the international law norm
and the domestic law remedy, the availability of punitive damages is not problematic. As a
matter of public policy, United States lawmakers have always viewed punitive damages as an
appropriate remedy for intentional torts. When the courts legislate domestic tort remedies in
ATS litigation, they should draw upon this wide spread and longstanding domestic tradition.
Cf. Xuncax v. Gramajo, 886 F. Supp. 162, 199-200 (D. Mass. 1995) (allowing punitive
damages under the TVPA).
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specificity."' 0' Therefore, questions about the myriad remedial issues that
will inevitably arise may be answered using the normal processes of the
common law. The existence of remedial ambiguities should not counsel
hesitation.
Even if we focus solely upon the norm that has been violated, a good
lawyer can still conjure confusion. Again to take the example of safe
conducts: Must the defendant have actual knowledge of the safe conduct?
What of defendants who did not know but should have known, or is
knowledge irrelevant to the norm's stricture? What sorts of safe conducts
does the norm protect? How about safe conducts from non-governmental
organizations, unrecognized governments, or a government other than the
defendant's government? Does the norm proscribe verbal abuse? Is it limited
to physical injury or does it also protect against economic injury? A
reasonable case can be made that the norm for safe conducts lacks
specificity, and yet it is part of the Sosa Court's trinity.
A good approach to the requirement of specificity is to treat it as a
refinement of the requirement that the norm must be "accepted by the
civilized world." Lawyers and judges routinely strive for the Holy Grail of
absolute specificity but never attain it. The problem of ambiguity is inherent
in the process of framing rules that regulate conduct. Over two hundred years
ago, Oliver Ellsworth, who drafted the ATS,10 2 noted in another context:
Perhaps no two men will express the same sentiment in the same matter, and
by the same words; neither do they connect precisely the same ideas with the
which the
same words. From hence arises an ambiguity in all languages, with
03
chargeable.
degree
a
in
are
writers
precise
and
most perspicuous
Some two centuries later, the problem of ambiguity
4 persists. Legal norms
always have and always will have an open texture.0
Take the question of whether verbal abuse is a violation of a safe
conduct. If there are no international law materials that persuasively address
the issue of verbal abuse, then there is no evidence that the civilized world
views verbal abuse as a violation of safe conduct. This ambiguity or lack of
specificity should preclude a judicially created tort remedy for verbal abuse
101.
"norm").
Sosa, 542 U.S. at 725 (emphasis added); accord id. at 730 (again referring to
Id. at 719 (citing Casto, Law of Nations, supra note 6, at 498 n. 169).
Oliver Ellsworth, The Letters of a Landholder V, in 14 DOCUMENTARY HISTORY
OF THE RATIFICATION OF THE CONsTrruTION 334, 335 (John P. Kaminski et al. eds., 1983).
104. See, e.g., H.L.A. HART, THE CONCEPT OF LAW 120-32 (1961).
102.
103.
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but should not bar a remedy for other violations clearly proscribed by
international law. Thus if someone with a safe conduct is beaten senseless,
the tort remedy should be available notwithstanding a lack of specificity
regarding aspects of the norm that are not pertinent to the case before the
court. Similarly, genocide, prolonged arbitrary detention, and systematic
05
racial discrimination probably are norms accepted by civilized nations.1
Nevertheless, these norms obviously are fraught with ambiguity. Their lack
of specificity in respect of conduct that falls in a gray area should not bar a
tort remedy for clear violations.'°6
B. Judges as Legislators
When the Congress originally enacted § 1350, virtually all American
lawyers were natural lawyers who were comfortable with the idea of divining
the existence of "a transcendental body of law outside of any particular
State" 0 7 that existed and was fully applicable without the need for a
government's intervening legislative action. When eighteenth-century judges
decided cases, they saw themselves as merely applying preexisting legal
rules to the facts of the case before them. They simply found legal principles.
In the case of statutes, they applied laws that had been created by the
legislature. In common law cases, they applied principles that existed in
nature. Judges did not make the common law. They used their intellect to
discover legal principles that stemmed from human reason and the command
of God.
Today, however, all American lawyers recognize that common law
principles are literally-to use Sosa's words-"made or created"'' 0 8 by
judges. Since the time when the Court recognized that the common law is a
specialized use of legislative jurisdiction, "the general practice has been to
look for legislative guidance before exercising innovative authority over
105. See supra note 81 and accompanying text.
106. Accord Presbyterian Church of Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d
331, 340 (S.D.N.Y. 2005); see also Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass.
1995).
107. Sosa, 542 U.S. at 725 (internal quotation marks omitted) (quoting Black & White
Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533
(1928) (Holmes, J., dissenting)). See generally William R. Casto, The Erie Doctrine and the
Structure of ConstitutionalRevolutions, 62 TUL. L. REV.907 (1988).
108. Sosa, 542 U.S. at 725.
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substantive law." °9 This practice simply recognizes the abiding principle of
legislative supremacy that we inherited from the English.
C. The Foreign Relations of the United States
Another factor counseling hesitation relates to the foreign relations of the
United States. There is a consensus that most matters related to foreign
relations are better entrusted to the legislative and executive branches than to
the judicial. The Congress and the President are elected by the people in part
to deal with foreign relations. Moreover, many foreign relations issues
involve imponderable political considerations that are not susceptible to
resolution by the traditional process of judicial lawmaking. The Sosa Court
specifically warned that in crafting tort remedies for violations of
international law, the judiciary should be "particularly wary of impinging on
the discretion of the Legislative and Executive Branches in managing foreign
affairs. '' l l 0
To be sure, some of the difficult foreign policy issues are not implicated
when courts apply a well-established principle of international law. In such
cases, "the courts can then focus on the application of an agreed principle to
circumstances of fact rather than on the sensitive task of establishing a
principle not inconsistent with the national interest or with international
justice.' ' i Nevertheless, even when the right under international law is
clearly established, foreign policy implications may counsel hesitation in
creating a remedy. The creation of a remedy is a formal decision that the
courts of the United States are officially open to investigate alleged
violations of international law, to make formal pronouncements that
violations have occurred, and to impose sanctions. Any resulting judgments
are properly viewed as official determinations by the United States
109. Id. at 726. The Court further noted that "this Court has recently and repeatedly
said that a decision to create a private right of action is one better left to legislative judgment."
Id. at 725.
110. Id. at 695. Professors Ku and Yoo would elevate this consideration to an almost
complete bar. See Ku & Yoo, supra note 41, at 155-56. Relying upon the truism that the
executive branch has considerable institutional advantages over the judicial branch in matters
relating to foreign relations, they insist that the executive is the more proper branch for
advancing and enforcing international law. Id. Although the executive clearly has significant
institutional advantages over the judiciary, the executive lacks lawmaking authority to create a
cause of action. If the fundamental question is whether there should or should not be a federal
cause of action, entrusting the matter to a branch of government that lacks power to create a
cause of action begs the question.
111. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964).
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2
government that the defendant and possibly the defendant's government"
have acted lawlessly.
It is a pragmatic fact of life that there may be some situations in which
the foreign policy of the United States is not well-served by an official
pronouncement by the judiciary that a particular government has or has not
violated international law. In a leading case, the Court explained that
pronouncements from a court may be an "affront to another state that could
seriously interfere with negotiations being carried on by the Executive
Branch.""13 Or there may be situations in which a nation's prior government
has engaged in the most despicable misconduct, but the current government
is making an honest, perhaps faltering, but nevertheless real effort to rectify
the past misdeeds.
The Apartheid Regime in South Africa comes readily to mind. If
apartheid were determined to be a violation of clearly established
international law, 1 4 a tort remedy for the victims of that evil system might
nevertheless be inappropriate. In Sosa, the Court noted that the present
government of South Africa is specifically worried that tort litigation in the
United States will interfere with its truth and reconciliation process and more
significantly that the United States government agrees." 15 The Court implied
that judging "the practical consequences" of creating a remedy in this context
is beyond judicial competence. 116 In addition, the South African
government's creation of a Truth and Reconciliation Commission 117 could be
112. "It is a rare Alien Tort Claim Act case that does not involve a foreign state or
official as a defendant." Doe I v. Unocal Corp., 395 F.3d 932, 965 n.3 (9th Cir. 2002)
(Reinhardt, J., concurring). An expansive cause of action inevitably would require "our courts
[to] sit in judgment of the conduct of foreign officials in their own countries with respect to
their own citizens." Sosa, 542 U.S. at 728 (alteration in original) (internal quotation marks
omitted) (quoting Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 813 (D.C. Cir. 1984)
(Bork, J., concurring)).
113. Sabbatino, 376 U.S. at 432. The Court also noted, "Considerably more serious
and far-reaching consequences would flow from a judicial finding that international law
standards had been met if that determination flew in the face of a State Department
proclamation to the contrary." Id.
114. See RESTATEMENT OF FOREIGN RELATIONS, supra note 40, § 702. In In re South
African Apartheid Litigation, 346 F. Supp. 2d 538 (S.D.N.Y. .2004), the court avoided the
question and instead held that the private corporate defendants' obligations under international
law were insufficiently established to warrant the creation of a judicial remedy. Id. at 554.
115. 542 U.S. at 733 n.21.
116. Id. at 733.
117. See id. at 733 n.21. See generally TERESA PHELPS, SHrATERED VOICES:
LANGUAGE VIOLENCE AND THE WORK OF TRUTH COMMISSIONS (2005).
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viewed as an adequate and available remedy that counsels against creating a
tort remedy in the United States.' 18
D. ParallelState and FederalRemedial Schemes
The existence of parallel regulatory schemes that already provide a
remedy for misconduct should also counsel hesitation. Multiple theories of
recovery for the same claim are commonplace in litigation, and particular
conduct by a government agent might simultaneously infringe rights secured
by both state tort law and the Federal Constitution. The result would be a
single claim or cause of action with multiple theories of recovery. The same
apparent misconduct might also violate an established principle of
international law and thus enable a plaintiff to plead yet a third theory of
recovery. For example, the practice of slavery would simultaneously violate
state tort law, the United States Constitution, and international law. Although
ATS litigation typically has been aimed at actors in foreign countries, the
principles of international law obviously are applicable within the United
States as well. Therefore, ATS litigation against state and federal officers is
inevitable.119
In the case of Bivens actions, the Court has recognized that the existence
of a comprehensive statutory remedy may obviate the need for a separate,
judicially-created remedy. In Bush v. Lucas,120 a federal employee alleged
that he was demoted in retaliation for exercising his First Amendment
rights.' 2 1 The Court, however, refused to create a Bivens damage remedy for
federal civil service employees because the Civil Service Act already
provided a remedy. 2 2 The Court recognized that the civil service remedy
was not as effective as a damage remedy and would not fully compensate the
employee for the harm suffered.123 Nevertheless, the Court was concerned
about the "conflicting policy considerations"' 24 and refused to create a
remedy because "Congress is in a better position to decide whether or not the
118. See infra notes 133-44 and accompanying text.
119. See Stephens, supra note 6, at 180-82.
120. 462 U.S. 367 (1983).
121. Id. at 369-70.
122. Id. at 388-90.
123. Id. at 372. In Jones v. Tennessee Valley Authority, 948 F.2d 258 (6th Cir. 1991),
the court stated that "[i]n the field of federal employment, even if no remedy at all has been
provided by the [Civil Service Reform Act], courts will not create a Bivens remedy." Id. at
264.
124. Bush, 462 U.S. at 388.
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public interest would be served by creating it.' 2 5 Subsequently, in Schweiker
v. Chilicky,126 the Court reached the same result for the same reasons7 in the
context of the remedial scheme provided by the Social Security Act.1
The principle of caution applied in Bush and Schweiker should be
equally applicable in ATS litigation against state and federal officers. Federal
judges surely will not view individual rights under international law as
meriting more protection than rights secured by the Constitution. If the
existence of a parallel remedial scheme counsels hesitation in Bivens
28
litigation, the same hesitation should be practiced in ATS litigation.
Suppose that a state or federal official were sued for committing torture
within the United States in violation of international law. This misconduct is
the quintessential ATS tort, but remedies are already available under
federal 29 and state tort law. These existing remedial schemes counsel
strongly against a judicially created tort remedy for the violation of
international law. Rather than create a new parallel cause of action regulating
the domestic activities of state and federal officials, the courts should decline
to create a confusing supplemental remedy.
In short, the wisdom of decisions like Bush and Schweiker strongly
suggests that the courts should not create a new common law tort remedy for
violations of clear and generally accepted violations of international law that
occur within the United States. Whether the outlaw is a government agent or
a private individual should not matter. A full panoply of adequate state and
federal tort remedies are available. As a matter of logic, there might be a
difference between the scope of liability under the new international tort
remedy and already existing remedies, but any differences should not matter.
Bush and Schweiker involved existing parallel remedial schemes that the
125. Id. at 390.
126. 487 U.S. 412 (1988).
127. Id. at 414.
128. See, e.g., Heinrich ex rel. Heinrich v. Sweet, 49 F. Supp. 2d 27, 43 (D. Mass.
1999); Hawkins v. Comparet-Cassani, 33 F. Supp. 2d 1244, 1255-56 (C.D. Cal. 1999), rev'd
on other grounds, 251 F.3d 1230 (9th Cir. 2001). But see JAMA v. INS, 22 F. Supp. 2d 353,
364 (D.N.J. 1998). For an able discussion, see generally Curtis A. Bradley, Customary
InternationalLaw and Private Rights of Action, 1 CI. J. INT'L L. 421 (2000). In Sosa, itself,
the Court expressed reluctance to create a tort remedy that would "supplement" § 1983 and
the Bivens remedy. See Sosa v. Alvarez-Machain, 542 U.S. 692,736-37 (2004).
129. See 42 U.S.C. § 1983 (2000) (governing claims against state officers). For federal
officers, see Carlson v. Green, 446 U.S. 14, 19 (1980) (discussing violations of the Eighth
Amendment in relation to the Federal Tort Claims Act), and Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 395-96 (1971) (discussing remedies
available for violations of the Fourth Amendment by federal officials).
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Court assumed were not as effective or protective as a Bivens remedy.
Nevertheless, in each case, the Court held that the parallel remedies
precluded a Bivens remedy. As a practical matter, federal judges are highly
unlikely to conclude that existing federal and state tort laws establish a
system of inadequate remedies.
The idea that judicially-created remedies should not be used to bypass
pre-existing remedial schemes is also relevant to tort remedies for treaty
violations. The ATS expressly recognizes that a remedy may be available for
a "tort ...committed in violation of ...a treaty of the United States."' 130 If a
treaty expressly imposes a duty or obligation upon a country, the existence of
the international norm is not subject to dispute. Nevertheless, an issue
remains as to whether a treaty provision simply creates rights and obligations
in the signatory states or in addition directly vests individuals with privately
enforceable rights. The United States has developed a specific analytical
framework for answering this difficult question. Some treaties are deemed
self-executing and therefore create privately enforceable rights, but non-selfexecuting treaties require an implementing act of Congress to create
privately enforceable rights.' 31 In deciding whether to create a tort remedy
for the violation of a treaty right, the federal courts ordinarily should create a
remedy only for self-executing treaty rights. To do otherwise would be to
bypass and
reject the wisdom of the self-executing/non-self-executing
132
analysis.
E. ParallelRemedial Schemes Under ForeignLaw
At first glance, the availability of parallel remedial schemes in foreign
countries might counsel the same hesitation in the creation of ATS tort
remedies. Suppose that a plaintiff in the United States sues Canadian
authorities alleging a violation of international law. Surely the existence of
purely domestic remedies under Canadian law would render an American
remedy at best unnecessary and at worst officious. Presumably the same
argument could be made with regard to many other countries' laws. If
remedies under another country's laws are adequate and available, the
wisdom of cases like Bush and Schweiker counsel against the creation of a
supplemental remedy under United States law.
130.
131.
28 U.S.C. § 1350 (2000).
See RESTATEMENT OF FOREIGN
132.
See Heinrich, 49 F. Supp. 2d at 43; Hawkins, 33 F. Supp. 2d at 1256-57.
RELATIONS, supra note 40, § 111; Louis HENKIN,
FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 198-204 (2d ed. 1996).
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Although Bush and Schweiker suggest that foreign remedial schemes
should counsel against the judicial creation of an ATS remedy, Congress
chose a different course in the TVPA. In the cases of torture and extrajudicial
killing, the Act does not provide that adequate and available remedies
actually negate the statutory cause of action. Instead, courts in the United
States are instructed to "decline to hear a claim under this section if the
claimant has not exhausted adequate and available remedies in the place in
which the conduct giving rise to the claim occurred.' 33 What happens if the
victim of torture in a foreign country has prosecuted the claim overseas?
May the claimant then relitigate in the United States under the TVPA? If the
presence of the parallel remedial scheme bars the very existence of the claim
as it does in Bivens litigation, relitigating the claim in the United States
would not be allowed because the judicially-created tort remedy never
existed. On the other hand, the statutory language of exhaustion literally
indicates that the right to relitigate will be a function of claim and perhaps
issue preclusion.134
The TVPA's legislative history is not very helpful on this highly
technical issue. The House Committee Report does not address the
135
distinction between completely barring a remedy and requiring exhaustion.
A citation in the Senate Report indicates that the TVPA's exhaustion
requirement is intended to be analogous to the traditional concept of
exhausting administrative remedies,1 36 which of course does not result in a
complete bar. The Act's principle of exhaustion might be interpreted as
barring a remedy rather than requiring exhaustion, but such an interpretation
would be a flat contradiction of the statutory language and the sparse
legislative history in the Senate.
Although the TVPA is limited to two particularly heinous violations of
137
international law, its principle of exhaustion should be applied generally.
133. Torture Victim Protection Act of 1991, Pub. L. No. 102-256, § 2(b), 106 Stat. 73,
73 (1992) (codified at 28 U.S.C. § 1350 note (2000)). For the requirements of "adequate and
available," see Sinaltrainalv. Coca-Cola Co., 256 F. Supp. 2d 1345, 1357-58 (S.D. Fla. 2003)
and Cabiriv. Assasie-Gyimah, 921 F. Supp. 1189, 1197 n.6 (S.D.N.Y. 1996).
134. See RESTATEMENT OF FOREIGN RELATIONS, supra note 40, § 481 n.3. Of course
the stringent requirements of the Full-Faith-and-Credit Clause do not apply. Moreover, the
issue is severely complicated by the fact that the foreign country's preclusion rules may be
significantly different from the United States or by the fact that some foreign countries may
have no formal rules of preclusion. See generally DAVID L. SHAPIRO, PRECLUSION INCIVIL
ACTIONS 153-67 (2001).
135. See H.R. REP.No. 102-367, at 4-5 (1993).
136. S.REP. No. 102-249, at 9-10 (1993).
137. But see Sarei v. Rio Tinto PLC., 221 F. Supp. 2d 1116, 1133-34 (C.D. Cal. 2002).
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In Sosa, the Court indicated that the general principle of exhaustion
exemplified by the TVPA might be adopted in an appropriate case.' 38 More
significantly, the TVPA provides Congress's considered judgment on the
significance of parallel foreign remedial schemes in ATS litigation. Although
the Act by its terms is limited to torture and extrajudicial killing, its wisdom
should guide the courts in shaping a common law remedy for violations
beyond the statute's scope. Courts occasionally rely upon legislative wisdom
to craft common law rules of decision. 139 As a careful and insightful scholar
once quipped, the result is a system of statutory wisdom revolving in
"common law orbits."' 4
In the TVPA, Congress overtly grappled with the relationship between a
federal tort remedy for violations of international law in a foreign country
and the availability of domestic remedies under the law of the country where
the misconduct occurred. Exercising its political judgment, Congress decided
that the federal tort remedy should give way to existing remedies under the
law of the situs. In shaping an analogous federal common law remedy for
other rights under international law, the courts should draw upon Congress's
expressed political wisdom. Clearly the judiciary's political judgment is not
superior to Congress's in weighing and balancing the respect to be accorded
foreign remedial schemes. Of course the courts also should adopt other
TVPA principles like the Act's ten-year142statute of limitation14 1 and the
provision for suit by a legal representative.
138. Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.2 (2004).
139. See, e.g., Moragne v. States Marine Lines, Inc., 398 U.S. 375, 392 (1970). In
fashioning the federal common law of contracts that regulate United States government
contracts, the federal courts routinely rely upon the wisdom of the Uniform Commercial Code.
See, e.g., Franklin Pavkrov Constr. Co. v. Roche, 279 F.3d 989, 996-97 (Fed. Cir. 2002); AFD
Fund v. United States, 61 Fed. Cl. 540, 546 (2004). Similarly, federal courts routinely draw
upon the wisdom of analogous statutes of limitation. See infra note 141 and accompanying
text.
140. See generally Roger J. Traynor, Statutes Revolving in Common Law Orbits, 17
CATH.U. L. REv. 401 (1968).
141. Torture Victim Protection Act of 1991, Pub. L. No. 102-256, § 2(c), 106 Stat. 73,
73 (1992) (codified at 28 U.S.C. § 1350 note (2000)); see, e.g., Papa v. United States, 281
F.3d 1004, 1011-13 (9th Cir. 2002); Doe v. Islamic Salvation Front, 257 F. Supp. 2d 115, 119
(D.D.C. 2003); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 461-63 (D.N.J. 1999).
The United States Code's general four-year statute of limitations, 28 U.S.C. § 1658
(2000), is not applicable, because § 1658 only applies to civil actions arising under federal
statutes enacted after 1990. The federal courts usually adopt analogous state statutes of
limitation for federal causes of action. See FALLON Er AL., supra note 6, at 759-61. In a few
cases, however, the courts have looked to analogous federal statutes of limitation. See id. at
761-63. The TVPA's long, ten-year period of limitation recognizes the fact that ATS litigation
typically arises out of activities in foreign countries. Significant time may pass before
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Searching the TVPA for Congress's wisdom or political judgment is
significantly different from ordinary statutory construction. Courts routinely
construe statutes whose meaning is unclear. In resolving a statutory
ambiguity, the courts may or may not have clear congressional guidance. In
contrast, before adopting an analogous statutory rule of decision as a general
common law rule, a court should be satisfied that the statutory rule actually
represents Congress's considered political judgment. The TVPA's statute of
limitation and exhaustion provision143 are good examples of specific issues
that have been overtly considered and addressed by Congress. Conversely,
courts should not adopt constructions of the TVPA that are not based upon
clear congressional guidance. For example, courts should be leery of
embracing negative inferences that may be drawn from the TVPA. Negative
inferences seldom embody a prior actor's considered judgment. 144
F. United States Activities Overseas
The overseas activities of federal agents must be distinguished from
activities within the United States. Traditional domestic tort remedies do not
apply to overseas activities taken under color of federal law. A tort remedy
against the United States itself is unavailable because the Federal Tort
Claims Act does not waive sovereign immunity for injuries sustained
plaintiffs are able to gain access to United States courts, identify tortfeasors, and gain personal
jurisdiction over the tortfeasors. See In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7,
61 (S.D.N.Y. 2005). In contrast to the TVPA period of limitation, state tort statutes of
limitation are enacted with domestic torts in mind and typically are far shorter than ten years.
See, e.g., TEX. CODE ANN. Civ. PRAc. & REM. § 16.003 (Vernon 2002) (allowing two years for
personal injury and wrongful death actions). In North Star Steel Co. v. Thomas, 515 U.S. 35
(1995), the Court explained that borrowing an analogous federal statute of limitation
is the exception, and we decline to follow a state limitations period "only when a rule
from elsewhere in federal law clearly provides a closer analogy than available state
statutes, and when the federal policies at stake and the practicalities of litigation make
that rule a significantly more appropriate vehicle for interstitial lawmaking."
Id. at 35 (quoting Reed v. United Transp. Union, 488 U.S. 319, 324 (1989)).
142. TVPA, § 2(a)(2), 106 Stat. at 73; accord Xuncax v. Gramajo, 886 F. Supp. 162,
191 (D. Mass. 1995).
143. TVPA, § 2(b)-(c), 106 Stat. at 73.
144. For example, liability under the TVPA is limited to persons who act "under.
color of law, of any foreign nation." TVPA § 2(a). Perhaps a negative inference could be
drawn that the statute is intended to bar the creation of ATS remedies against persons who act
under color of federal law, but nothing in the Act's language or legislative history suggests
that Congress actually grappled with this issue.
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overseas. 45 Nor is a Bivens remedy necessarily available. The Court has
indicated that United States agents are unbridled by much of the Bill of
Rights when they act against aliens overseas.146 Given this remedial vacuum,
there is nothing to counsel hesitation in creating a tort remedy for violations
of well-established principles of international law.
The Federal Tort Claims Act, however, presents a serious impediment to
ATS litigation arising from overseas misconduct by United States officials.
Under the Act, the remedy against the United States is "exclusive of any
other civil action ... against [a federal] employee."'' 47 In effect the statute
substitutes the United States for individual defendants, but there is a catch-22
to the substitution: once substituted, the government may claim sovereign
immunity to the extent that other sections of the FTCA have not waived the
government's immunity. 148 In United States v. Smith, 149 the Court considered
the Act's substitution procedure in the context of a tort committed by a
federal employee in a foreign country and held that the Act immunizes
employees even
when the FTCA does not allow a suit against the United
50
States, itself.'
The FTCA's immunization of federal officers is written in general terms
that clearly are broad enough to encompass a tort action for violation of
international law,' 5' and the substitution procedure was used to immunize the
federal agents who were originally sued in Sosa.'52 Moreover, Congress
actually considered whether exceptions should be made to the general
145. The Justices in Sosa were unanimous on this issue. See supra note 13 and
accompanying text.
146. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (Fourth
Amendment).
147. 28 U.S.C. § 2679(b)(1) (2000). In Bieregu v. Ashcroft, 259 F. Supp. 2d 342
(D.N.J. 2003), the court held that this provision was applicable to ATS litigation against
federal officers arising from conduct within the United States. Id. at 351-53.
148. See 28 U.S.C. § 2679 (2000).
149. 499 U.S. 160 (1991).
150. Id. at 169; see also Matsushita Elec. Co. v. Ziegler, 158 F.3d 1167, 1169-70 (1 th
Cir. 1998).
151. The Act's substitution procedure extends to actions "for injury or loss of property,
or personal injury or death arising from the negligent or wrongful act of omission of [the
officer]." 28 U.S.C. § 2679(b)(1) (emphasis added). This language is broad enough to apply
to intentional torts. See, e.g., Glendora v. Pinkerton Sec. & Detective Servs., 25 F. Supp. 2d
447,453 (S.D.N.Y. 1998). Nevertheless, most of the cases in which the substitution procedure
has been used, including the Smith case, have been common law actions for negligence. See,
e.g., Smith, 499 U.S. at 162-63.
152. See Alvarez-Machain v. United States, 266 F.3d 1045, 1053-54 (9th Cir. 2001),
rev'd sub nom. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004); accord Elmaghraby v.
Ashcroft, 2005 WL 2375202, at *34-35 (S.D.N.Y. Sept. 27, 2005).
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immunization and expressly provided two specific exceptions. 53 Neither
exception covers ATS litigation. 154 The Smith rationale seems to be fully
applicable because the Supreme Court held in the first part of the Sosa
decision that the FTCA's waiver of sovereign immunity does not extend to
injuries suffered overseas. 55 By the Statute's terms, however, the
immunizing156 substitution procedure does not apply to government
contractors.
G. Uncoupling ATS Litigationfrom the ATS
A final factor that may counsel hesitation in creating a tort remedy is the
ATS itself. As an historical fact, § 1350 has always limited ATS litigation,
because the courts' jurisdiction has always been premised upon the Act. Sosa
clearly holds, however, that ATS claims are common law-not statutorycauses of action. Sosa uncouples the cause of action from the jurisdictional
statute, which raises the possibility that a court might avoid the statute's
limitations by premising subject matter jurisdiction on some other statute. In
particular, state trial courts might assume jurisdiction under applicable state
jurisdictional law, and federal trial courts 57
might assume jurisdiction under §
1331, the general federal question statute.
General federal question jurisdiction over ATS litigation makes sense
because there obviously will be a federal question in the well-pleaded
complaint. Some have argued that the international law norms remedied in
ATS litigation should not be treated as federal law, but the law is clearly to
153. See 28 U.S.C. § 2679(b)(2).
154. See Elmaghraby, 2005 WL 2375202, at *34-35. The exceptions allow civil
actions against officers for violations of the Constitution and for violations of "a statute of the
United States under which such action against an individual is otherwise authorized." 28
U.S.C. § 2679(b)(2). The Sosa Court clearly held that § 1350 does not create a statutory
course of action. See supra notes 15-17 and accompanying text. The TVPA does create a
statutory cause of action, but the action is available only against individuals who act "under
actual or apparent authority, or color of law, of anyforeign nation." Torture Victim Protection
Act of 1991, Pub. L. No. 102-256, § 2(a), 106 Stat. 73, 73 (1992) (codified at 28 U.S.C. §
1350 note (2000)) (emphasis added).
155. See supra note 13 and accompanying text.
156. The FTCA immunizes "any employee of the [g]overnment" but makes no
mention of government contractors. 28 U.S.C. § 2679(b)(1).
157. See RICHARD H. FALLON, JR. ET AL., HART & WECHSLER'S THE FEDERAL COURTS
AND THE FEDERAL SYsTEM 45 (5th ed. Supp. 2005). The commentary in this invaluable
casebook is intended to spark thoughtful consideration and discussion. Therefore, the
commentary does not necessarily represent the authors' conclusions regarding particular
issues.
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the contrary.158 In any event, the Sosa Court clearly held that the availability
of a remedy is a question of pure domestic federal law. In most cases, the
distinction between basing jurisdiction on § 1331 or § 1350 would not
matter, but it might matter in a few. For example, § 1350 excludes contract
actions, but § 1331 does not.' 59
A serious issue that inevitably will be litigated is whether a United States
citizen has an international tort remedy comparable to the remedy accorded
aliens. Although the ATS does not vest the federal courts with jurisdiction
over claims by our own citizens, § 1331 has no comparable limitation. Some
have suggested that the extension of an ATS remedy to American citizens
may be problematic,1 60 but a strong case can be made for the equal treatment
of aliens and Americans.
Although § 1350 does not vest the federal courts with jurisdiction over
tort claims by United States citizens, there is nothing in the statute's history
to suggest that Congress sought to deprive Americans of tort remedies
otherwise available at common law. Therefore, the ATS cannot plausibly be
read as a positive congressional direction or suggestion that Americans
should not be accorded common law remedies. On the other hand, the Sosa
Court clearly saw the ATS as a legislative acknowledgement of the
availability of common law remedies. 161 The Court viewed the ATS as
implicitly approving judge-made law. 16 2 If the federal courts now create a
common law remedy beyond the ATS's clear jurisdictional scope, they do so
without the implicit approval evidenced by the Act. This theoretical problem
should not be ignored.
In practice, however, the theoretical problem is significantly attenuated
by the array of specific factors that usually will counsel against the creation
of a tort remedy for United States citizens. Therefore, it is difficult to create a
plausible "parade of horribles" that will ensue if the federal courts create a
common law remedy for United States citizens. A tort remedy should not be
created for aliens who suffer harm within the United States, 16 3 and
Americans should be treated the same way. Similarly, the Federal Tort
158. See supra notes 39-41 and accompanying text.
159. The notion of an international law norm requiring a private person to fulfill a
contractual obligation is, however, so far-fetched that it does not merit serious consideration.
160. See, e.g., FALLON ET AL., supra note 157, at 45; William Dodge, Bridging Erie:
Customary International Law in the U.S. Legal System After Sosa v. Alvarez-Machain, 12
TULSA J. COMP. & INT'L L. 87, 97-100 (2004).
161. Sosa v. Alvarez-Machain, 542 U.S. 692, 724(2004).
162. Id.
163. See supra notes 119-32 and accompanying text.
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Claims Act will equally preclude aliens and Americans from obtaining a tort
remedy against federal employees and the federal government for federal
misconduct overseas.164 Likewise, the existence of adequate and available
remedies in a foreign country 165 will present the same problem for
Americans that it imposes on aliens.
Given all the factors that counsel the courts to hesitate in creating a
remedy, the most plausible claim that an American might present would
involve a foreign official's violation of a clear and specific international law
norm in a foreign country. In this event the federal courts surely will accord
the United States citizen the same remedy that is available to an alien.
Suppose, for example, that an alien and an American citizen are enslaved in a
foreign country, and they subsequently bring suit against their erstwhile slave
master in the United States. Does any one believe that a federal judge would
exercise his or her discretionary lawmaking powers to legislate a remedy for
the alien but not for the judge's compatriot?
To be sure, the creation of a remedy for Americans would lack § 1350's
implicit approval, and the Sosa Court specifically warned that § 1331 should
not be read as an implicit congressional approval of judicial lawmaking
power in cases beyond the ATS's scope.' But this does not mean that
implicit congressional approval is lacking. When Congress considered the
164. See supra notes 147-56 and accompanying text.
165. See supranotes 133-44 and accompanying text.
166. In a concurring opinion, Justice Scalia suggested that under the Court's analysis,
§ 1331's grant of general federal question jurisdiction could be read as a congressional
warrant for the federal courts to exercise general, unrestrained common law powers. Sosa v.
Alvarez-Machain, 542 U.S. 692, 745 n.* (2004) (Scalia, J., concurring). The majority
emphatically disagreed, stating "[§] 1350 was enacted on the congressional understanding that
courts would exercise jurisdiction by entertaining some common law claims derived from the
law of nations; and we know of no reason to think that federal-question jurisdiction was
extended subject to any comparable congressional assumption." Id. at 731 n.19 (majority
opinion).
Some have conjectured that the majority's footnote might mean that "customary
international law may be federal common law for purposes of the ATS, but not for the
purposes of § 1331." Dodge, supra note 160, at 97. This approach, however, creates
unnecessary and undesirable complications. Classifying the norm as federal common law
allocates the task of administering litigation to remedy international law to the original and
removal dockets of the lower federal courts. In contrast, if the norm is not federal common
law when an American citizen sues, the administration of the litigation becomes primarily a
state court responsibility with at best sporadic supervision by the Supreme Court. If American
citizens are to be denied the rights accorded aliens, there is a much simpler and less
complicated approach: simply recognize that the pertinent international norm is federal
common law and deny the remedy. Under this analysis, the federal common law rule of
decision would be that there is no remedy.
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issue of tort remedies for violations of international law and enacted the
TVPA, it explicitly considered whether aliens and Americans should be
treated equally. Both the House and Senate committee reports expressly
noted that American citizens would be able to sue under the proposed
legislation, 67 and there is not even a hint in the legislative history that
providing our own citizens with a remedy was in any sense controversial.
The TVPA accomplishes this equal treatment of American
and alien
' 68
plaintiffs by making the remedy available to any "individual."'
The other significant limitation in the ATS that might counsel hesitation
is the Act's provision that the federal courts shall have jurisdiction. 69 The
Act is silent in respect of state court jurisdiction, but the silence is
unremarkable. Federal jurisdictional statutes seldom address state court
jurisdiction, and there is a "deeply rooted presumption in favor of concurrent
state court jurisdiction. ' 70 So, ATS claims presumptively may be filed in
state court.
Some have asked, "Would a state court have to treat as invalid, under the
Supremacy Clause, any state law that would stand in the way of such a state
court action?"' 7' This question is commonplace and can be asked anytime a
plaintiff invokes a state court's presumptive concurrent jurisdiction over a
federal claim. A comprehensive and nuanced jurisprudence has been
developed to resolve the inevitable conflicts that arise when a state court tries
a federal cause of action. 172 State courts are required to adjudicate federal
claims, 173 but state courts may apply state procedural rules as long as the
procedural rules do not discriminate against the federal claim. 174 The primary
distinction between ATS litigation and other federal claims that are routinely
tried in state court arises from the norm that is remedied. Federal norms
typically are purely domestic in nature, but the norms in ATS litigation
originate outside the United States in the practice of nations. Under the Sosa
guidelines, however, there are comparatively few such norms for which a tort
remedy would be available. Suppose a plaintiff sought a federal tort remedy
167. See H.R. REP. No. 102-367, at 4 (1991); S. REP. No. 102-249, at 5 (1991); see
also 137 CONG. REc. H 11244-04 (1991) (statement of Rep. Mazzoli).
168. Torture Victim Protection Act of 1991, Pub. L. No. 102-256, § 2(a), 106 Stat. 73,
73 (1992) (codified at 28 U.S.C. § 1350 note (2000)).
169. 28 U.S.C. § 1350 (2000).
170. Tafflin v. Levitt, 493 U.S. 455, 459 (1990).
171.
172.
FALLON ET AL., supra note 157, at 45 (referring to the ATS).
See FALLON ET AL., supra note 6, at 418-65.
173. See, e.g., Testa v. Katt, 330 U.S. 386, 394 (1947).
174. Compare McKnett v. St. Louis & S.F. Ry., 292 U.S. 230, 233-34 (1934), with
Douglas v. N.Y., N.H. & H.R. Co., 279 U.S. 377, 387-88 (1929).
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in a state court in a case of slavery or genocide. One wonders what kind of
"state law" would "stand in the way" of the state court action. 175 The
supremacy claim would override a "state law" that purported to determine
the merits of the plaintiffs claim. On the other hand, a state court should be
free to apply its nondiscriminatory procedure rules.
To be sure, there may be difficulties in applying the distinction between
substance and procedure in particular ATS cases filed in state court. The
difficulties, however, are not unique to ATS litigation. Rather, they are
inherent in the longstanding practice that generally vests state courts with
power to adjudicate federal claims. Moreover, there is less here than meets
the eye. The typical plaintiff will prefer federal court to state court unless
there is an identifiable advantage to suing in state court. On the other hand, if
filing suit in state court actually advantages the plaintiff, the defendant
presumably will remove the case to federal court. In other words, there
seldom will be a conflict between state and federal law in ATS litigation,
because the litigation will either originate in federal court or be removed to
federal court.
IV. CONCLUSION
The heart of the Sosa decision is a forthright recognition that providing a
private tort remedy is fundamentally a legislative decision. The federal courts
are accustomed to legislating common law rules of decision that provide
defenses to existing causes of action or that fill the interstices of
congressional enactments, but creating an entire cause of action out of whole
cloth is another matter. Nevertheless, the Court decided that the courts may
appropriately exercise limited legislative powers in ATS litigation. In
significant part, the Court's willingness to make federal common law in this
area may be justified by the tacit congressional approval found in the ATS
and the TVPA. The Court, however, explicitly disavowed any suggestion
that it would legislate the norms that establish the rights and duties that are
remedied in ATS litigation. The norms must come from international law,
which is beyond any domestic court's legislative power. Therefore, the
creation of the norms, themselves, does not involve the courts in judicial
lawmaking. Of course, courts may surreptitiously exercise legislative
authority by unilaterally creating norms and then pretending that the norms
are found in international law. This potential for abuse, however, is inherent
in the judicial process. The same problem of surreptitious legislation arises
175.
See supra text accompanying note 171.
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any time a court construes a statute. The Sosa opinion deals with this
problem by mandating that there must be clear evidence of general
acceptance of a norm by civilized nations. As a result, the federal courts'
legislative powers are restricted to remedial details.
On balance, the Court's rationale is surely correct. If Congress has tacitly
approved the concept of a federal common law of tort remedies, surely the
remedy should be made available for the violation of generally recognized
and accepted international norms that are intended to regulate one person's
treatment of another. Take the case of slavery. Is it more reasonable to
assume that the United States wants to immunize slavers or to provide a
remedy to the enslaved? Absent congressional guidance to the contrary,
federal common law should be premised upon the assumption that the policy
of the United States is to help victims and not to protect lawless perpetrators.
Of course, this presumption only works in the case of generally accepted
norms that the world's nations view as directly creating rights and
obligations between persons. When courts venture to remedy violations of
norms that are not generally accepted, the courts are legislating rules for
regulating how people in foreign nations treat each other. Sosa reserves this
kind of extraterritorial legislative authority to Congress.
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