For decades, the Alien Tort Statute (ATS) has played a valuable role in human rights litigation in U.S. courts. However, in recent years, the U.S. Supreme Court has limited the ATS’s effectiveness in a number of respects. In response to these decisions, many scholars have predicted that litigants will begin to evade the restrictive ATS jurisprudence by bringing traditional ATS cases in state courts. This comment reveals that this tactic has not become as prevalent as scholars predicted and evaluates the only two state court cases uncovered by the author’s research. This comment then explains why litigating would-be ATS cases in state court will lead to negative policy implications for the United States, including inconsistent treatment of these claims and degradation of the federal government’s ability to “speak with one voice” regarding foreign affairs. To prevent these issues from arising, congressional action is needed to clarify the ATS’s intended reach and vest federal courts with exclusive jurisdiction over claims fitting within that reach.
Avoiding the Alien Tort Statute: A Call for Uniformity in State Court Human Rights Litigation,
SMU L. Rev.