Wednesday, April 30, 2014

Lee on the Three Lives of the Alien Tort Statute

Thomas H. Lee, Fordham University School of Law, has posted The Three Lives of the Alien Tort Statute: The Evolving Role of the Judiciary in U.S. Foreign Relations, which is forthcoming in the Notre Dame Law Review 84 (2014).  Here is the abstract:
This Article explains how the Alien Tort Statute (ATS) began in the late eighteenth century as a national security statute that the First Congress and early federal district judges saw as a way to afford damages remedies to British merchants, creditors, and other subjects whose persons or property were injured under circumstances in which treaties or the law of nations assigned responsibility to the United States. Torts committed within the United States by private American citizens were the most likely such circumstances. The ultimate aims of the statute were to avoid renewed war with Great Britain and the other European powers and to encourage commerce and trade with the same. Two centuries later, the ATS was reborn as an international human rights statute at a time when the United States had become a global superpower with an global human-rights agenda during the administration of President Jimmy Carter. Now that the Supreme Court's holding in Kiobel v. Royal Dutch Petroleum Co. has undermined the international human rights vision of the ATS, this Article suggests that the statute be used once again as a way to afford aliens money damages when they suffer torts under circumstances where the United States bears sovereign responsibility under contemporaneous international law.

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