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

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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