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8 Duke J. Const. L. & Pub. Pol'y Sidebar 1 (2012-2013)

handle is hein.journals/dukjppsid8 and id is 1 raw text is: KIOBEL V. ROYAL DUTCH PETROLEUM: DELINEATING THE BOUNDS OF THE ALIEN TORT STATUTE TARA MCGRATH* I. INTRODUCTION The Alien Tort Statute (ATS) has been deemed a legal Lohengrin,' after the knight who mysteriously emerges on a swan- drawn boat in the Richard Wagner opera-no one knows from where it came or for what purpose it appeared. The one-sentence statute simply states: 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.2 Compounding problems, the ATS's early history is sparse-after the first Congress passed the statute as part of the Judiciary Act of 1789, the statute lay largely dormant for almost 200 years. In 1980 the statute was finally resurrected in the landmark case Filartiga v. Pena-Irala,4 in which the Second Circuit recognized an ATS claim for torture perpetrated under the color of official authority.! Since then, ATS litigation has proliferated in federal courts, offering aliens redress for violations of customary international law J.D. Candidate, 2014, Duke University School of Law. 1. IT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (This old but little used section is a kind of legal Lohengrin ... no one seems to know whence it came.). 2. 28 U.S.C.A. § 1350 (West 2012). 3. See William R. Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 CONN. L. REv. 467, 468 n.5 (1986) (noting two early court cases that did cite the ATS, but only as an alternative basis for jurisdiction over admiralty cases (citing Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795) (No. 1607); Moxon v. The Fanny, 17 F. Cas. 942 (D. Pa. 1793) (No. 9895))). 4. 630 F.2d 876 (2d Cir. 1980). 5. Id. at 878. It is indeterminate why the ATS was seldom utilized before Filartiga, though one reason may be the uncertainty surrounding the statute's reach and application. See Tel- Oren v. Libyan Arab Republic, 726 F.2d 774, 775 (D.C. Cir. 1984) (describing the ATS as an area of law that cries out for clarification).

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