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July 18, 2012

SCOTUSblog: The ATS and the Importance of Historical Evidence

Posted by Cara Solomon

NOTE: Tyler and Susan wrote the following post for SCOTUSblog’s online symposium on Kiobel. For all symposium posts, please see here.

At February’s oral argument in Kiobel v. Royal Dutch Petroleum Co., counsel for the petitioners responded to questions about extraterritoriality by citing the incident in Sierra Leone that led to the well-known 1795 opinion of Attorney General William Bradford. That exchange appears to have sparked the Supreme Court’s request for supplemental briefing on whether the Alien Tort Statute (ATS) applies to acts that arise on foreign territory. History, including the so-called Bradford Opinion, provides strong evidence that the ATS does apply to conduct occurring on foreign soil.

History has long been a critical part of ATS jurisprudence, given that the statute dates to 1789. Sosa guides that any ATS cause of action must be for violations of the law of nations as universally recognized as eighteenth-century paradigms, such as piracy. The text and purpose of the statute, the common law of the era, and the Bradford Opinion provide the relevant insight into the Justices’ current question about claims that arise in foreign lands – and indicate that there would have been no territorial limit on the ATS at the time of the statute’s enactment.

The Framers of the ATS were common-law lawyers, and the law of nations was part of the common law of the time. They would not have embraced a bright line, categorical exclusion of all claims arising on foreign territory – whether in a case between two aliens or some other combination of defendant and plaintiff. Instead, the Framers would have been familiar with fashioning remedies to realize the statute’s broad remedial purpose, providing relief in U.S. courts to aliens who suffered violations of international law. Indeed, as Justice Stephen Breyer noted at oral argument when he quoted from the 1666 English Skinner case, courts of the day were familiar with fundamental notions of justice and crafted common-law remedies for violations “odious and punishable by all laws of God and man.”

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