The Supreme Court argument in Cisco Systems Inc. v. Doe is today (SCOTUSBlog summary here) — the questions presented are:
(1) Whether the Alien Tort Statute allows a judicially-implied private right of action for aiding and abetting; and (2) whether the Torture Victim Protection Act allows a judicially-implied private right of action for aiding and abetting.
The first question is of substantial originalist interest because the statute was enacted in 1789 (part of the original Judiciary Act) and some modern applications of it have gone far beyond what its text and context should allow. The Alien Tort Statute, 28 USC 1350 (ATS) provides 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.
As described in this essay at Just Security from a while back, I think the ATS had a very simple role in the minds of its drafters. It allowed federal diversity jurisdiction for cases where the amount in controversy was less than the amount set by statute for ordinary cases, if the case involved an international law violation. (If the amount in controversy was more than the statutory requirement, there would be no need for ATS jurisdiction because the case would come under ordinary diversity jurisdiction.) This made sense because the amount in controversy requirement generally served to limit federal cases to important ones, with less important ones going to state court. But a case involving an international law violation might be important for diplomatic reasons even if the amount in controversy wasn’t large. So the ATS removed the amount in controversy for those cases (and nothing more).
Things went badly astray in the 1980s and 90s because lower courts accepted the argument that the ATS created an implied federal cause of action allowing aliens to sue other aliens as a matter of federal question jurisdiction without satisfying Article III diversity. The Supreme Court largely put a stop to this in a series of post-2000 cases (Sosa, Kiobel, Jesner) but it never fully cleaned up the misconception that the ATS somehow created a cause of action, instead of simply providing a supplement to federal diversity jurisdiction, with the cause of action to be supplied (as in other diversity cases) by applicable non-federal law.
So the originalist answer to the question “Whether the Alien Tort Statute allows a judicially-implied private right of action for aiding and abetting” is “no” — not because of something about aiding and abetting in particular, but because the ATS doesn’t allow a judicially-implied private right of action for anything. It just provides jurisdiction, on the same terms and in parallel language as the ordinary federal diversity statute.
The irony in Cisco is that there isn’t any doubt about federal jurisdiction; the parties are diverse for Article III purposes (because the defendant is a U.S. corporation) and the statutory amount in controversy requirement is easily satisfied. The plaintiffs want to use the ATS, not to get federal jurisdiction, but to get a federal cause of action that federal judges can shape to their tastes. But the current Supreme Court majority is skeptical of aiding and abetting claims, so most observers think it will shape the judicially created implied right to suit its tastes (and rule for Cisco).
Presumably what will happen in the future, if Cisco prevails, is that plaintiffs in Doe’s situation will sue under ordinary federal diversity jurisdiction, with a cause of action supplied by applicable non-federal law — which would get us back, more-or-less, to the original meaning, albeit in a convoluted, nonoriginalist way.
[Disclosure: I was involved in an amicus brief supporting Cisco at the cert stage and I have been involved in various capacities in prior ATS cases in support of ATS defendants, but I don’t have any current involvement in the Cisco case.]
Posted at 6:14 AM