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89 Notre Dame L. Rev. 1467 (2013-2014)
The Curious History of the Alien Tort Statute

handle is hein.journals/tndl89 and id is 1517 raw text is: ARTICLES THE CURIOUS HISTORY OF THE ALIEN TORT STATUTE Beth Stephens* INTRODUCTION The Alien Tort Statute (ATS)1 has provoked extensive, passionate debate, despite the relatively modest practical import of ATS cases. The out- sized controversy surrounding the statute reflects its role in a longstanding struggle for control over the interpretation and enforcement of international law, and over whether that law will serve as a meaningful restraint on the actions of states, state officials, and corporations. As a result, the history of the ATS offers a unique window into the modern history of international law. Since the 1980 Filartiga decision first applied the eighteenth century stat- ute to modern human rights claims,2 only a handful of lawsuits have pro- duced enforceable judgments for plaintiffs, while another handful settled, and a few dozen cases led to judgments that vindicated the plaintiffs' claims, but could not be enforced. Despite this limited litigation success, govern- ment officials, scholars, litigators, human rights activists, business leaders, @ 2014 Beth Stephens. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Professor, Rutgers Law School. I have participated on the side of plaintiffs in many of the cases described in this Article, and currently represent the plaintiffs in an Alien Tort Statute claim pending in the Southern District of Florida, Mamani v. Sdnchez-Berzain. Thanks to William Aceves, Doug Cassel, William Casto, Judith Chomsky, William Dodge, Jean Galbraith, David Noll, and colleagues at a Rutgers Law School faculty colloquium for helpful comments on an earlier draft of this Article. And many thanks to Daniel Palmisano and Michael Perez for excellent research assistance. 1 The Alien Tort Statute, 28 U.S.C. § 1350 (2006), states in full: 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. Congress enacted the ATS in 1789, as part of the Judiciary Act that established the new federal court system. Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 76-77 (codified as amended at 28 U.S.C. § 1350 (2006)). 2 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). 1467

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