UNIVERSAL JURISDICTION, THE ALIEN TORT STATUTE, AND TRANSNATIONAL PUBLIC-LAW LITIGATION AFTER KIOBEL

The Alien Tort Statute (ATS), enacted in 1789 as part of the first Judiciary Act, provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations...." Although the statute lay dormant until the 1980s, the ATS has since become the font of transnational public-law litigation in American courts. This litigation, frequently involving largely foreign parties and events, is a form of civil-side universal jurisdiction. Like more traditional forms of universal jurisdiction, the ATS allows American courts to hear human-rights claims based on the enormity of the offense, even when the claims lack any significant ties to the United States. But unlike traditional universal jurisdiction, which is overwhelmingly a criminal phenomenon, ATS suits place control over initiation and conduct of this litigation in private hands and engage the exceptional machinery of American civil justice. The Supreme Court sharply limited ATS suits in the 2013 case of Kiobel v. Royal Dutch Petroleum Co. This Article defends the Court's rejection of universal jurisdiction in Kiobel and assesses the future of human-rights litigation in American courts. I submit that the scope of human-rights litigation under the ATS is best viewed not as a sui generis problem of foreign-relations law, as most lawyers and scholars have treated it, but instead within the more traditional federal-courts framework of implied rights of action and federal common law. Kiobel's concerns about extraterritorial application of the ATS fit comfortably within this framework, and they suggest that the Court will be extremely cautious about expanding the scope of ATS litigation in future cases. I also situate the ATS within the context of broader debates about enforcement of international human rights. These debates raise two crucial questions of institutional design: reliance on supranational or national institutions, and public or private control of enforcement. This debate, too, can be usefully informed by domestic debates about regulatory enforcement.