Thursday, May 31, 2012

Bradley on Attorney General Bradford's 1795 Opinion on the Alien Tort Statute

Curtis A. Bradley, Duke University School of Law, has posted a new essay, Attorney General Bradford's Opinion and the Alien Tort Statute.  The essay considers an important 1795 opinion of the Attorney General, and includes primary sources in the appendix.  Here's the abstract:
In debates over the scope of the Alien Tort Statute (ATS), one historical document has played an especially prominent role. This document is a short opinion by U.S. Attorney General William Bradford, issued in the summer of 1795, concerning the involvement of U.S. citizens in an attack by a French fleet on a British colony in Sierra Leone. Numerous academic articles, judicial opinions, and litigation briefs have invoked the Bradford opinion, for a variety of propositions, and the opinion was discussed by both sides in the oral argument before the Supreme Court in the first hearing in the pending ATS case, Kiobel v. Royal Dutch Petroleum. Surprisingly, however, no one appears to have looked for the official records and correspondence concerning the Sierra Leone incident, other than the Bradford opinion itself. Based on research conducted in the archives of both the U.S. State Department and the British Foreign Office, this essay considers the broader diplomatic context of the Bradford opinion. The essay concludes that, when read in light of the complaints from the British government that Bradford was responding to, his opinion provides support for the extraterritorial application of the ATS, but only with respect to the conduct of U.S. citizens. It also concludes that the opinion does not provide support for aiding and abetting liability under the ATS, at least as that concept is typically invoked today. The two principal documents that Bradford was responding to in his opinion, which have not previously been considered in the scholarship on the ATS, are transcribed as an appendix to the essay.