At Just Security, I have a longer and (thanks to the editors) more polished version of my previous thoughts on the Supreme Court's pending Alien Tort Statute cases: Rethinking the Alien Tort Statute. From the introduction:
This Term’s consolidated cases Nestlé USA v. Doe and Cargill v. Doe show how the Supreme Court has gone wrong in applying the Alien Tort Statute (ATS) and offer a chance for correction. The question – ostensibly – in these cases is whether there is federal jurisdiction over plaintiffs’ claims against the defendant companies for complicity in forced labor in the West African nation of Côte d’Ivoire (Ivory Coast). The answer to that question is obvious: of course there is. Plaintiffs are not U.S. citizens, the defendants are U.S.-incorporated corporations, and the amount in controversy exceeds $75,000. That is sufficient to establish federal jurisdiction under Article III, Section 2 of the Constitution and the alien diversity provision of 28 U.S.C. § 1332(a)(2). (There are some statutory exceptions but none appears to apply here).
The ATS is thus entirely unnecessary to the jurisdictional question. The complex issues discussed in the briefs – whether the claims are extraterritorial, whether corporations are a subject of international law, whether and in what circumstances international law recognizes aiding and abetting liability, whether the claims promote or interfere with U.S. foreign policy – need not be answered to establish jurisdiction.
The plaintiffs want this to be an ATS case (despite the complexities that raises) not to establish federal jurisdiction, which exists in any event under § 1332, but to establish a favorable federal cause of action. In a normal diversity jurisdiction case, once federal jurisdiction is established, the next question would be what source of law gives the plaintiffs a legal claim. On this question, the diversity jurisdiction statute is irrelevant. It only conveys jurisdiction, and the plaintiffs’ cause of action must be found elsewhere (most likely, in the law of Côte d’Ivoire, the place where the harm occurred).
The ATS should work in the same way. In its 2004 decision in Sosa v. Alvarez-Machain, the Court rightly said that the ATS is only a jurisdictional statute – specifically noting its “strictly jurisdictional nature” – that did not create a statutory cause of action. (Indeed, the Court quoted Professor William Casto’s observation that the contrary idea was “simply frivolous”). That is apparent from the ATS’s plain text (which speaks only of jurisdiction). It’s also apparent from the ATS’s statutory context. The statutory predecessors of the modern ATS and the modern alien diversity statute were both part of the same enactment, the Judiciary Act of 1789 (Section 9 and 11, respectively). By their text, both speak only to jurisdiction; there is no reason to think they were intended or understood to operate differently. And no one has ever thought that the alien diversity statute creates a federal cause of action.
And two key points from later on:
Two questions remain about the ATS, but they are easily answered. First, if it is duplicative of the alien diversity statute, why was it enacted? The answer is that it is not duplicative: unlike the alien diversity statute, it does not have an amount-in-controversy requirement. Thus it served a narrow purpose in the design of the 1789 Judiciary Act: it allowed claims in federal court for torts in violation of international law where the claimed damages were less that the statutory minimum for diversity jurisdiction. (I develop this analysis in more detail here). Its narrow purpose may seem odd today, after it has become the subject of so many modern high-profile cases. But that narrow purpose accounts for its relative obscurity in its first two centuries.
Second, what about ATS cases in which alien diversity jurisdiction is lacking because the plaintiffs and defendants are all aliens? (Unlike modern alien diversity jurisdiction, the ATS on its face does not require a U.S. citizen party). Justice Neil Gorsuch answered this question in his concurrence in Jesner: in the 1789 Judiciary Act, alien diversity jurisdiction also did not require a U.S. citizen party, but in Mossman v. Higginson in 1800, the Court held that because Article III of the Constitution required a U.S.-citizen party, it would read the diversity provision to do so as well (Congress later amended the statute to conform to Mossman). The ATS – also part of the 1789 Judiciary Act – should be treated in the same way.
In conclusion:
In sum, Nestlé/Cargill is about the alleged complicity of U.S. corporations in harms that occurred in Côte d’Ivoire. The claims thus typically should be governed by Côte d’Ivoire law. One way to get to that result is to say that the ATS does not apply to extraterritorial harms even if some incidental conduct occurred in the United States (and that seems to be the Court’s likely path after Kiobel). Plaintiffs could then claim federal jurisdiction under the alien diversity statute instead, with a cause of action under Côte d’Ivoire law. But the better path would be to say that while the ATS may provide jurisdiction even as to extraterritorial claims, it does not provide causes of action and so (in this case) it does not add anything. This is an alien diversity jurisdiction case; the ATS need not have become involved.
Posted at 6:36 AM