The Alien Tort Statute1 (ATS) has been a creature on the run. Birthed under presumptions of general common law, it found itself in Erie’s2 crosshairs, but was saved by a Court unwilling to put it down fully.3 Specifically, in Sosa v. Alvarez-Machain,4 the Court recognized that even if a post-Erie ATS ought to be seen as “purely jurisdictional,”5 a new cause of action may still be recognized if it is founded on “a norm that is specific, universal, and obligatory.”6 The Court has since demonstrated concern about the subsequent growth of ATS litigation.7 Last Term, in Jesner v. Arab Bank, PLC,8 the Court again cut back on the scope of ATS litigation, this time holding that foreign corporations could not be sued under the ATS. Jesner’s immediate result of excluding foreign corporate liability places the ATS on life support. Yet, perhaps more gravely, the Court’s methodology threatens to do greater damage. By first potentially raising the standard for a “specific, universal, and obligatory” norm, and then emphasizing the broad preemptive power of “analogous” statutory provisions, Jesner’s interpretation of the Sosa test may prove prohibitive to recognizing any new causes of action. Thankfully for ATS plaintiffs, there are perhaps more forgiving ways to apply Jesner’s methodology, which could save the ATS from complete extinction.
Joseph Jesner is one of about 6,000 foreign nationals who allegedly were injured or killed by terrorist attacks abroad.9 These individuals, or those suing on their behalf, filed ATS lawsuits against Arab Bank, a Jordan-based international financial institution.10 Plaintiffs alleged that Arab Bank helped finance attacks by terrorist groups through conduct that took place in the United States.11 In particular, plaintiffs alleged that Arab Bank used its New York branch to clear dollar-denominated transactions that benefited terrorists, and facilitated the transfer of funds to the bank accounts of terrorist-affiliated organizations in the Middle East.12
Notably, the Second Circuit had decided previously, in Kiobel v. Royal Dutch Petroleum Co.,13 that foreign corporations could not be sued,14 a holding that ostensibly foreclosed the Jesner plaintiffs’ suit. Yet, because the Supreme Court had ultimately decided the appeal based on the separate question of extraterritoriality,15 it provided no clear instruction on the correctness of the Second Circuit’s foreign corporate liability holding. Nevertheless, taking Kiobel as binding circuit precedent, the district court dismissed the Jesner plaintiffs’ suit, and the court of appeals affirmed.16 Plaintiffs appealed, placing the question of foreign corporate liability before the Supreme Court for the second time.
This time, the Court affirmed on the specific question. At times commanding a five-Justice majority, and at others writing for only a three-Justice plurality, Justice Kennedy relied on principles of judicial restraint, and an application of Sosa, to hold that foreign corporate defendants could not be sued under the ATS.
First, for a five-Justice majority, Justice Kennedy channeled the history of the ATS to demonstrate its limited scope.17 According to this history, the Articles of Confederation suffered from an “inability . . . to ensure adequate remedies for foreign citizens” harmed by violations of international law, leading to foreign relations strife.18 “[E]nacted . . . against the backdrop of the general common law,”19 the ATS was drafted to “furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations.”20
Next, Justice Kennedy outlined the modern trajectory of the ATS. He first noted that the Torture Victim Protection Act of 199121 (TVPA) was enacted in the midst of lower court debate about the judiciary’s ability to redress international human rights violations through the ATS.22 Justice Kennedy then noted Sosa’s affirmation of a judicial ability to “recognize new, enforceable international norms in ATS lawsuits.”23 Yet this was coupled with an emphasis on Sosa’s “explicit” caution toward “separation-of-powers and foreign-relations concerns.”24
Then, commanding only a three-Justice plurality, Justice Kennedy sought to apply Sosa’s instructions to determine if foreign corporate liability could be recognized under the ATS. He characterized the Sosa test as a two-part inquiry: First, whether the alleged violation is “of a norm that is specific, universal, and obligatory.”25 Second, even assuming the norm is of such a character, whether “allowing [the] case to proceed under the ATS is a proper exercise of judicial discretion.”26
With regard to the first step, Justice Kennedy defended the need to find that “corporate liability” was itself a “specific, universal, and obligatory” norm under the Sosa framework.27 This defense was in response to the plaintiffs’ argument that corporate liability was a concept distinct from the substantive harm that such liability should attach to.28 In dismissing this argument, Justice Kennedy relied primarily on footnote 20 of Sosa, wherein the Court noted that a “related consideration” to the recognition of international norms “is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or an individual.”29
Applying the “specific, universal, and obligatory” test to corporate liability, Justice Kennedy reasoned that there was insufficient support to hold that corporate liability passed international law muster. Catalog-uing the various international law charters that did not include corporate liability, Justice Kennedy concluded that there was “at least sufficient doubt” that the international community had accepted this norm.30
Justice Kennedy then turned to the second Sosa step: whether the recognition of corporate liability was an appropriate exercise of judicial discretion. First, he contextualized the specific inquiry within the Court’s more general shift away from implying causes of action.31 Writing for the five-Justice majority, Justice Kennedy further justified this judicial prudence by citing the separation of powers implications that are inherent in the foreign policy context.32
Still operating under Sosa’s second step, Justice Kennedy then looked to statute. Again speaking only for a three-Justice plurality, he reasoned that “analogous statutes” could provide “guidance on the appropriate boundaries of judge-made causes of action.”33 First, Justice Kennedy observed that the TVPA’s private right of action reflected “Congress’ considered judgment of the proper structure for a right of action under the ATS.”34 To Justice Kennedy, by unambiguously limiting liability under the TVPA to natural persons and not corporations, Congress was telling the judiciary to fall in line.35 Then, responding to plaintiffs’ reliance on the Antiterrorism Act of 1990’s36 (ATA) provision for corporate liability,37 Justice Kennedy made two arguments. First, the ATA functioned as an “inapt analogy” given that it “provide[d] a cause of action only to ‘national[s] of the United States.’”38 Second, even if it were relevant, allowing common law actions through the ATS would improperly “bypass . . . [t]he detailed regulatory structures prescribed by Congress” in the ATA.39
Next, Justice Kennedy marshaled three practical reasons for precluding foreign corporate liability. First, he noted that the ATS would “seldom be the only way” to remedy a violation.40 Second, Justice Kennedy cited the dangers to U.S. corporations that might result from a reciprocal extension of corporate liability by other countries.41 Then, writing again for the five-Justice majority, Justice Kennedy emphasized the foreign relations dangers at stake.42 To the majority, this was more than just a hypothetical fear. The Jesner litigation had, for thirteen years, “‘caused significant diplomatic tensions’ with Jordan, a critical ally” in antiterrorism efforts.43
Justice Alito concurred in part and concurred in the judgment. Notably, Justice Alito did not join a significant part of the plurality’s application of the Sosa test and expressly doubted “that Sosa was correctly decided.”44 Yet, instead of choosing to relitigate Sosa, Justice Alito focused his concurrence on why corporate liability ought to be precluded even under an application of Sosa’s second step.45 For Justice Alito, the preclusion of corporate liability was “compelled not only by ‘judicial caution,’”46 but also by a necessary “[f]idelity to congressional policy.”47 Because the proven risk of diplomatic strife would be fundamentally inapposite to the First Congress’s intention to “avoid diplomatic friction” by enacting the ATS, the separation of powers “easily” foreclosed foreign corporate liability.48
Justice Gorsuch also concurred in part and concurred in the judgment, refusing to join the plurality’s application of Sosa.49 Yet he showed greater verve in challenging Sosa’s constitutional validity, providing “two more fundamental reasons” for the Jesner conclusion.50 First, Justice Gorsuch called for an end to the “ATS exceptionalism”51 created by Sosa, reasoning that the separation of powers precluded a judicial role in creating new causes of action detached from duly enacted federal law.52 Second, he argued that Jesner, “a suit by foreigners against a foreigner over the meaning of international norms,”53 fell outside any constitutional grant of federal court jurisdiction.54
Justice Thomas concurred in a brief one-paragraph opinion.55 Acknowledging that Justice Kennedy’s opinion “correctly applie[d] our precedents,” Justice Thomas joined it in full.56 Yet he did so while expressly “agree[ing] with the points raised by” Justices Alito and Gorsuch.57
Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, dissented. The dissent disagreed sharply with both “the Court’s conclusion and its analytic approach.”58
First, Justice Sotomayor argued that the plurality had fundamentally misapplied Sosa’s first step.59 Specifically, Justice Sotomayor emphasized a distinction between customary international law norms that are “substantive prohibitions on certain conduct” and “mechanisms of enforcing these norms.”60 While the former is properly within the scope of Sosa’s step one inquiry, the latter is a question left up to states to answer through treaties or domestic law.61 Responding to Justice Kennedy’s reliance on footnote 20 to blur this line in the context of corporate liability, Justice Sotomayor insisted that footnote 20 was meant solely to demonstrate that some particular substantive prohibitions on conduct were inherently contingent on the status of the perpetrator.62 Under this “norm-specific” conception of footnote 20, the plurality’s categorical preclusion of all corporate liability was misguided.63
Turning then to the “relevant inquiry,” the dissent asked if there was “any reason — under either international law or our domestic law — to distinguish between a corporation and a natural person.”64 Looking at both the text and history of the ATS, Justice Sotomayor argued not. First, the text of the ATS references “tort[s]” without qualification.65 Second, unlike how it limits classes of plaintiffs, the ATS “does not distinguish among classes of defendants.”66 Next, turning to history, the dissent observed that the ATS was enacted against a legal backdrop of corporate tort liability, which nothing suggested had been rebutted under the ATS.67
After issuing a sharp rejoinder to Justice Gorsuch’s concurrence as an attempt to “relitigat[e] settled precedent,”68 the dissent then trained its sights on the plurality’s “flawed” application of Sosa’s second step.69
First, the dissent observed that none of the “diplomatic friction” supposedly identified by the majority was caused by a general recognition of corporate liability.70 Instead, the Jordanian outrage was a matter of the ATS’s extraterritorial scope and extension of accomplice liability, neither of which was inherent to the issue of the corporate form.71
Second, the dissent argued that the Court’s purported deference to the political branches was wrongly applied.72 Here, both the executive branch and members of Congress had submitted briefs in support of corporate liability.73
Third, responding to the Court’s reliance on the TVPA to preclude corporate liability, the dissent argued that the TVPA, a statute that covers substantive causes of action distinct from those pleaded in Jesner, ought to have “no comparative value.”74
Fourth, the dissent dismissed the practical considerations raised by the plurality. To Justice Sotomayor, Justice Kennedy’s suggestion that plaintiffs may resort to other means of holding perpetrators accountable missed the point.75 The ATS was never meant to be “the exclusive means” for pursuing a remedy.76 Completing her litany of rebuttals, Justice Sotomayor characterized the plurality’s fears of diplomatic strife and burdens to U.S. corporations as “alarmist conjectures,” unsupported by the briefings before the Court.77
Jesner marks the latest chapter in the storied evolution of the ATS. Jesner’s principal author may have since retired, but with Chief Justice Roberts joining the plurality in full, and four dissenting Justices still open to exercising a judicial role in implying ATS causes of action, an approach building off Jesner’s plurality opinion may represent the clearest road to at least five votes in an ATS case before the Court. Some scholars have interpreted Jesner as marking the extinction of ATS litigation78 and have begun looking elsewhere for remedies for international human rights abuses.79 Yet others are not ready to declare time of death, emphasizing instead that Jesner technically addressed only the issue of foreign corporate liability, leaving domestic corporate liability and individual liability unscathed.80 The appropriate reaction may lie somewhere in between. True, Jesner itself left open questions of individual, accomplice, and domestic corporate liability. But the plurality’s methodological maneuvers in applying the Sosa test may be far more damaging than Jesner’s holding alone. By potentially heightening what must be a “norm” that satisfies step one of Sosa, and too easily finding the preclusive effect of “analogous” statutes under step two, Jesner’s application of the Sosa test may ultimately prove prohibitive of recognizing new ATS causes of action. For ATS plaintiffs seeking to preserve Sosa’s vitality, it is imperative to insist on a narrow reading of Jesner and a more forgiving application of its methodology.
First, under Sosa’s first step, the plurality’s approach potentially expands both the type and content of “norms” that need to be “specific, universal, and obligatory.” As argued by Justice Sotomayor in dissent, the plurality appeared to conflate “substantive prohibitions on certain conduct” with the modes of enforcing these prohibitions.81 In response, Justice Kennedy argued that “it is far from obvious” why corporate liability is a “mere question of remedy.”82 Even without taking a side, it suffices to say that the path taken by Justice Kennedy may have harsh implications for ATS plaintiffs.
Taken at its broadest, the plurality’s apparent expansion of what must be a “specific, universal, and obligatory” norm would severely heighten the barrier that ATS plaintiffs face. Take accomplice liability. In addition to the now-foreclosed option of asserting corporate liability, ATS suits founded on accomplice liability represent another one of the few ways that ATS plaintiffs have found meaningful recourse.83 Yet a broad reading of Jesner may aggravate problems faced by plaintiffs attempting to make ATS claims based on accomplice liability.
First, Jesner suggests that plaintiffs bringing accomplice liability claims must establish that accomplice liability itself, and not just the underlying violation, meets the Sosa test. Both corporate liability and accomplice liability impose liability on an entity or individual for an action ultimately conducted by another.84 Accordingly, accomplice liability literature draws similar distinctions between “conduct-regulating norms” and “other rules of decision,”85 and between the “underlying abuse” and the “ancillary question of aiding and abetting.”86 Pre-Jesner, an ATS plaintiff might have been able to find a path of lesser resistance by arguing that accomplice liability is merely an “ancillary question” that need not satisfy the Sosa test.87 Jesner’s apparent refusal to accept that distinction in the context of corporate liability may have put that argument to bed.
Second, because it is unclear what else Jesner leaves in its wake, it may also be considerably harder for plaintiffs to prove that accomplice liability does indeed meet the Sosa test. The plurality’s approach most immediately applies to norms concerning the attachment of secondary liability. However, Jesner provides no limiting principle that differentiates other aspects of the suit, including the elements of the crime, available defenses, or procedural questions such as the statute of limitations. If these other aspects are put through the Jesner–Sosa wringer, accomplice liability claims may fail the test. In particular, circuit courts are not entirely clear regarding the mens rea standard applicable to accomplice liability. The Ninth Circuit has wavered on the adoption of a “knowledge standard.”88 In contrast, the Second and Fourth Circuits, relying on different international materials,89 have adopted the stricter “purpose” standard.90 Thus far, courts have not let this inconsistency stop them from recognizing the general existence of the norm of accomplice liability.91 And again, nothing on Jesner’s face demands they should. However, taken at its broadest, the Jesner expansion of what content of a norm needs to be “specific, universal, and obligatory” might be interpreted to apply to these questions as well.
Thankfully, and imperatively, for ATS plaintiffs, there is a narrower way to interpret and apply Jesner. Despite Justice Sotomayor’s broad accusations, Justice Kennedy’s analysis can arguably be restricted to the issue of corporate liability. Specifically, Justice Kennedy expressly characterized the dispute as “center[ing] on a footnote in Sosa.”92 In turn, footnote 20 was an express instruction by the Sosa Court to assess the “related consideration” of “whether international law extends the scope of liability . . . if the defendant is a private actor such as a corporation or individual.”93 Seen in this light, future courts ought not to view Jesner as calling for a new expansive approach to norm-finding under Sosa step one. Instead, Jesner is merely a specific answer to Sosa’s specific instruction, one relating only to the question of corporate liability. With that question answered, the rest of the ATS ought to stay intact.
The next potential problem for ATS plaintiffs comes with the plurality’s treatment of “statutory analog[ies]” under Sosa step two.94 The plurality, observing that the TVPA “reflects Congress’ considered judgment of the proper structure of a right of action under the ATS,” reasoned that “[a]bsent a compelling justification, courts should not deviate from that model” when exercising their discretion under Sosa step two.95 Taken literally, the plurality’s choice of the TVPA as the single gold standard could potentially exclude a wide swath of ATS suits.
Apart from its exclusion of corporate liability, the TVPA also contains other significant limitations. For example, suits are restricted to those against persons acting under the color of foreign law,96 with the implication that defendants acting under the color of domestic U.S. law are off the hook. Applying this same limitation to all suits under the ATS would have immediate effect on real cases like Salim v. Mitchell,97 a lawsuit filed by torture victims against CIA contractors, acting under color of U.S. law, for participating in the post-9/11 torture program.98
Yet again, future plaintiffs may rely on a narrower, and more nuanced, interpretation of Jesner’s methodology. Justice Kennedy’s discussion of the TVPA’s comparative value greatly emphasized the “foreign-policy implications” at stake.99 Accordingly, any deference that is accorded to the TVPA ought to be applied with this guiding principle in mind. This can manifest in two ways. First, a threshold question before looking to the TVPA should be whether the relevant question requires a policy-driven choice that implicates foreign relations. If not, deference to the TVPA is unnecessary. Second, even if some deference is warranted, the amount of deference given to the statute ought to depend on the severity of the foreign relations concerns at stake. To the Jesner majority, the extension of foreign corporate liability severely implicated these concerns.100 Yet the same cannot be said for other issues. For instance, holding U.S. contractors acting under color of domestic U.S. law liable, while unavailable under the TVPA, arguably raises few foreign relations concerns. Accordingly, there exists little principled basis, even under the logic of Jesner, to hold every possible ATS lawsuit arbitrarily to the standard of the TVPA.
Undoubtedly, Jesner significantly curtailed the scope of ATS litigation. It is hence understandable that some might choose to pivot away from the ATS and toward extrajudicial means of holding international law violators accountable. Yet Jesner might have maimed, but did not kill the ATS. For those still committed to using this statute as a means of recourse, a critical study of Jesner’s actual scope suggests some play still in the joints.