The ATS Cause of Action Is Sui Generis

INTRODUCTION In Kiobel v. Royal Dutch Petroleum Co., the Court considered the extraterritorial reach of the tort action for violations of customary international law. (1) Kiobel was a "foreign-cubed" case in which a foreign plaintiff sued a foreign defendant for damages arising from conduct in a foreign country. (2) The Justices wrote four different opinions, but they were unanimous in refusing to create a federal common law tort remedy in a foreign-cubed case. (3) At least they were unanimous in holding that a remedy is not available in a case like Kiobel. (4) Some, including the present author, are disappointed in the Court's decision. But in an important sense, the decision was by definition correct. When nine Justices of different political and philosophical persuasions reach a unanimous decision, it is foolhardy, or at least quixotic, to argue that the Court erred. As Justice Robert H. Jackson once quipped: "We are not final because we are infallible, but we are infallible only because we are final." (5) After Kiobel, the federal courts will have to decide whether any significant (6) aspect of the common law tort for violations of international law should survive the Court's unanimous decision. In considering whether the Alien Tort Statute (ATS) (7) action survives Kiobel, the courts should pay careful attention to the action's sui generis nature. We all learned in law school that a cause of action consists of a norm or rule of conduct that establishes the illegality of particular conduct and a remedy for the violation of the norm. We seldom, however, need to pay careful analytical attention to the differences between the norm and the remedy. With the exception of ATS claims, every cause of action under American law involves a norm and a remedy legislated by the same sovereign. In international torts, however, the norm and the remedy do not come from the same sovereign. The norm comes from international law, and the remedy is legislated by federal courts. Because ATS actions are sui generis, there is a very real potential for courts to resort to forms of analysis that make sense in the usual context of tort litigation and arbitrarily apply these established forms to international torts. The presumption against extraterritoriality is an example of a general tort concept that does not adapt well to ATS claims. (8) Rather than using labels to decide these cases, the courts should adopt a functional analysis keyed to the international tort's unique nature. The ultimate result will be the same in some cases but may be different in others. The ATS is a subject matter jurisdiction statute and does not create a statutory cause of action. In Sosa v. Alvarez-Machain, the Court explained that the ATS "'clearly does not create a statutory cause of action,' and ... the contrary suggestion is 'simply frivolous.'" (9) Nevertheless there is a relationship between the ATS and the substantive cause of action. The Sosa Court held that the ATS should be read as an implicit congressional authorization or approval of tort remedies to be fashioned by the federal courts as federal common law. (10) This notion of common law stemming from a grant of jurisdiction is not new. The federal common law of admiralty (11) and of collective bargaining agreements (12) usually are traced to grants of jurisdiction. (13) But a congressional authorization to create federal common law is significantly different from a legislative cause of action. In the latter situation, Congress has legislated a remedy and a norm or rule of conduct, and determining the substantive scope of the cause of action is almost entirely a matter of statutory interpretation. In the former, the statute is silent on the substantive issue of who should win or lose on the merits. The grant of jurisdiction simply tells the courts the general subject matter that the common law action should address. The actual substantive contours of the cause of action that dictate who should win or lose are left to the courts' sound discretion. …