In 1984, in Tel-Oren v. Libyan Arab Republic, the United States Court of Appeals for the District of Columbia Circuit affirmed the district court’s dismissal of an international human rights case. In the first sentence of his concurring opinion, Judge Edwards wrote, “This case deals with an area of the law that cries out for clarification by the Supreme Court.” Twenty years later, the Supreme Court decided Sosa v. Alvarez-Machain. What, if anything, has the Court clarified?
Judge Edwards referred to tort suits brought by aliens for violations of the law of nations under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350. The ATS originated as Section 9 of the Judiciary Act of 1789. The modern text is little changed from the original. It reads:
The district courts shall have original 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.
There are two jurisdictionally interesting things about Section 9. First, Section 9 was designed to provide easy access to federal court, authorizing jurisdiction in district courts staffed by resident district judges, with no amount-in-controversy requirement. Second, although Section 9 premised jurisdiction on the presence of an alien as a party, it limited the exercise of that jurisdiction to only two specified sources of substantive rights: violations of United States treaties and torts in violation of the law of nations. There was no difficulty with subject matter jurisdiction over suits based on treaty violations. Such suits clearly came within the “arising under” jurisdiction of Section 2 of Article III, and I will not be concerned in this essay with those suits.