The Alien Tort Statute and Federal Common Law: A New Approach

Abstract

Federal courts faced with Alien Tort Statute cases have applied customary international law to some issues and federal common law to others. This binary approach is analogous in certain respects to a Bivens action, with federal common law creating the cause of action and international law providing the conduct regulating norms. A better approach, advanced and defended in this symposium article, is to view federal common law as applying to virtually all aspects of Alien Tort Statute litigation, although for some issues federal common law is tightly linked to the content of customary international law. This article defends a federal common law approach on descriptive, doctrinal, and normative grounds. It also applies this approach to aiding and abetting and corporate liability, and briefly addresses prescriptive jurisdiction issues that arise in Alien Tort Statute litigation. It concludes that the Alien Tort Statute is best understood to extend liability to corporations, based on both congressional intent and the unsettled state of international law, that a knowledge rather than purpose standard should be applied to aiding and abetting claims, in part because international has frequently delegated the mens rea issue to domestic law or to development by courts. On both questions, however, some deference to the executive branch is appropriate. Finally, prescriptive jurisdiction limitations apply in ATS cases, and limit the types of claims that can go forward.