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132 Harv. L. Rev. 397 (2018-2019)
Leading Cases: Federal Statutes

handle is hein.journals/hlr132 and id is 407 raw text is: FEDERAL STATUTES Alien Tort Statute - Foreign Corporate Liability - Jesner v. Arab Bank, PLC The Alien Tort Statute1 (ATS) has been a creature on the run. Birthed under presumptions of general common law, it found itself in Erie's2 crosshairs, but was saved by a Court unwilling to put it down fully.3 Specifically, in Sosa v. Alvarez-Machain,4 the Court recognized that even if a post-Erie ATS ought to be seen as purely jurisdictional,5 a new cause of action may still be recognized if it is founded on a norm that is specific, universal, and obligatory.6 The Court has since demon- strated concern about the subsequent growth of ATS litigation.7 Last Term, in Jesner v. Arab Bank, PLC,8 the Court again cut back on the scope of ATS litigation, this time holding that foreign corporations could not be sued under the ATS. Jesner's immediate result of excluding for- eign corporate liability places the ATS on life support. Yet, perhaps more gravely, the Court's methodology threatens to do greater damage. By first potentially raising the standard for a specific, universal, and obligatory norm, and then emphasizing the broad preemptive power of analogous statutory provisions, Jesner's interpretation of the Sosa test may prove prohibitive to recognizing any new causes of action. Thank- fully for ATS plaintiffs, there are perhaps more forgiving ways to apply Jesner's methodology, which could save the ATS from complete extinction. Joseph Jesner is one of about 6,aaa foreign nationals who allegedly were injured or killed by terrorist attacks abroad.9 These individuals, or those suing on their behalf, filed ATS lawsuits against Arab Bank, a Jordan-based international financial institution.10 Plaintiffs alleged that Arab Bank helped finance attacks by terrorist groups through conduct that 1 28 U.S.C. § 1350 (2012). 2 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). 3 See Sosa v. Alvarez-Machain, 542 U.S. 692, 724-25 (2004). 4 542 U.S. 692. s Id. at 743 (Scalia, J., concurring in part and concurring in the judgment); see also id. at 724 (majority opinion) (describing the ATS as a jurisdictional statute creating no new causes of action). 6 Id. at 732 (quoting In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994)). 7 Citing the need to exercise caution in considering which claims could be brought under the ATS, the Court in Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 18, 116 (2013), held that the presumption against extraterritoriality applies to claims under the ATS, id. at 124, thus removing from the ATS's scope international law violations that failed to touch and concern the territory of the United States . . . with sufficient force, id. at 124-25. 8 138 S. Ct. 1386 (2018). 9 Id. at 1393-94. 10 Id. 397

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