Abstract

In recent years, foreign plaintiffs have paired with individual do-gooders and international nonprofits to step up litigation in US. courts under the 1789 Alien Tort Statute (ATS). Burmese villagers and Nigerian environmental-justice advocates are among the plaintiffs trying to use the ATS to hold multinational corporations responsible for human rights abuses in foreign countries. The ATS employs simple, direct language to provide for U.S. jurisdiction over tort claims that violate the law of nations, but its interpretation in the context of corporate liability has raised a number of complicated and difficult legal issues for U.S. courts. Instead of addressing these difficult issues head on, some courts are using procedural doctrines to dismiss the cases and to avoid untangling difficult substantive issues. This Note argues that the clear language of the ATS should provide a procedural "trump" to assist these claims in overcoming procedural hurdles and reaching substantive determinations by courts. Part I of this Note examines the history and current scope of the ATS. Part II goes on to discuss the use of procedural doctrines as a proxy for dealing with complicated legal substance. Part III provides a close look at a number of the procedural doctrines used by federal courts to dismiss ATS cases, including forum non conveniens, heightened pleading standards, comity, and the act-of-state doctrine. In Part IV this Note examines whether the use of these procedural doctrines to dismiss ATS cases is justified. It concludes that, given the Act's direct language, courts should aim to address the merits of cases under the ATS instead of dismissing them on procedural grounds, thus providing ATS plaintiffs with access to justice and defendants with guidance on acceptable actions abroad.

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