The Fall of the Alien Tort Statute: Why the Supreme Court is Moving Away from Prosecuting Human Rights Abuses Abroad

Introduction

In 2003, a terrorist detonated a suicide bomb while on board a bus in Haifa. This event was part of a larger series of attacks against Israelis — attacks that many Israelis believe were financed partially by the Arab Bank. Fifteen years after the bus explosion, the fathers of three boys who were killed on board wrote an opinion piece in The Jerusalem Post urging the Supreme Court of the United States to hold the Arab Bank accountable for its role in the attacks.^[1] Why did these fathers turn to the Supreme Court to prosecute actions that did not occur on American soil? And what gave the Supreme Court the right to consider such a case?

Petitioners filed the case against Arab Bank (Jesner v. Arab Bank) in the United States under a once obscure law called the Alien Tort Statute (ATS). The United States Congress created the ATS in 1789 for aliens to sue for wrongful acts, or torts, in federal courts.^[2] Scholars believe that the Framers wrote the ATS to ensure that the national government dealt with foreign affairs.^[3] For almost two hundred years after its enactment, the ATS lay dormant. In 1980 human rights activists rediscovered the ATS as a way to prosecute actors abroad for human rights abuses. For the last 40 years or so, human rights activists have used the ATS to hold powerful actors accountable. However, the era of using the ATS to prosecute abusers for actions committed abroad may be ending: within the last decade, the Supreme Court has gradually narrowed the scope of the ATS.

The narrowing of the ATS has arrived at a puzzling moment in history. Globally, a norm of accountability is emerging in international law. According to the Spiral Model of Human Rights Change, a decentralized system of accountability is materializing, and states are  expected to hold foreign human rights abusers responsible for their actions. If the world is accepting an accountability norm, why is the United States narrowing a law that creates accountability?

This paper will attempt to explain the major factors that influenced the narrowing of the ATS. The first section will consider the literature on the topic, most of which focuses on the widening of the ATS. In order to fill in the gaps in the research, this paper will focus on the decisions in the two most recent cases that narrowed the ATS: Kiobel and Jesner. By examining newspaper articles and recent scholarship, this paper will consider the actors, arguments, and themes that influenced these cases. I will argue that the decision to narrow the ATS in both Kiobel and Jesner was based on three issues: the rise of a pro-business court, a recent rejection of universality, and increased fears about foreign entanglements. This exploration will provide some insight into how and why the Supreme Court may be pushing back against the international rise of accountability by narrowing the ATS.

Literature Review

Scholars have suggested that the re-awakening and widening of the ATS has its roots in the 1970s human rights movement and the negative reactions to globalization in the 1990s. Not long after its revival, the ATS faced a slew of attacks that led to its eventual narrowing. There is much less research on what caused the narrowing of the ATS, considering that the two cases that limited the ATS (Kiobel and Jesner) occurred in 2013 and 2018. Most of the recent literature on the ATS discusses the scope of the ATS, and the implications these two most recent ATS cases might have on prosecuting human rights violations in the future. Scholars who have studied the ATS claim that it was limited because of conservative economic, legal, and political arguments that were popularized in the late 1990s.

The Rise of the ATS

In 1980, the Second Circuit Court in Filartiga v. Pena-Irala held that the ATS can be used to prosecute violations of customary international law on foreign soil.^[4] This decision effectively revived the ATS as a means to prosecute human rights abuses abroad. Many scholars — such as Stephens, Drimmer, Deitelhoff, and Wolf, — have argued that the late 20^th century human rights movement sparked the rise of the ATS in the 1980s and 1990s. Stephens claimed that the 1970s human rights movement pushed federal courts to recognize the ATS as a way to enforce human rights norms. Enraged by the foreign policies of Kissinger and Nixon, and inspired by the civil rights movement and the end of the Vietnam war, activists in the 1970s began looking for ways to encourage federal courts to enforce the international agreements and emerging international norms regarding human rights that arose after World War II.^[5] These activists  discovered the utility of the ATS.

According to Lee, shifting attitudes about human rights within the executive and legislative branches in the late 1970s and early 1980s helped solidify the Filartiga interpretation of the ATS. In the late 1970s the executive and legislative branches endorsed the application of international law by federal courts, and therefore endorsed Filartiga. International human rights were central to the Carter administration’s foreign policy agenda, and the Carter administration used the judicial branch to reproach allies of the United States for their atrocities.^[6] The political branches of government support of the human rights movement legitimized the modern reading of the ATS.

According to Drimmer, Deitelhoff, and Wolf, activists in the 1970s and 1980s also pushed to reign in the actions of corporations. Activists at that time tried to legally bind companies into following human rights norms while international organizations created “soft-law” regulations through voluntary codes of conduct. Unfortunately, most of these attempts failed. In the 1990s, the rise of globalization caused corporations to gain even more power.^[7] According to Drimmer, this period of globalization sparked the modern ATS movement and in the early 1990s, lawyers began using the ATS to prosecute corporations for their actions abroad.^[8] As more corporations moved to developing nations during the 1990s, more scandals about the human rights abuses of corporations emerged leading to the multiplication of corporate ATS cases.

The Fall of the ATS

According to Stephens, when lawyers began filing ATS cases against powerful defendants, objections against the ATS gained popularity among scholars, corporations, and political actors.^[9] The economic argument was most popular among corporations.^[10] Hufbauer and Mitrokostas were two scholars who held that the ATS would have devastating effects on the United States economy and the economies of developing nations. Hufbauer and Mitrokostas claimed that the threat of an ATS suit might discourage corporations from doing business in developing countries.^[11] They worried that if corporations stopped investing in developing nations then “millions of impoverished people may be denied an opportunity to participate in the global market.”^[12] When countries are denied opportunities to trade, the prospects for that country are diminished.^[13] Not only would developing nations suffer, but the United States would also lose significant investments if ATS suits created obstacles to trading with developing nations. Hufbauer and Mitrokostas estimated that a wave of ATS litigation would depress overall trade between the United States and “target countries” by ten percent.^[14]– an almost $42 billion loss in imports to the United States.

The economic argument has been highly influential in narrowing the ATS. Justice Kennedy, who presented the majority opinion in Jesner, claimed that the ATS could harm the global economy by discouraging American corporations from investing abroad.^[15]

Stephens also cited the legal anti-ATS argument based on Bradley and Goldsmith’s work that gained popularity in the late 1990s.  In 1997, Bradley and Goldsmith argued that the legal modern interpretation of the ATS is incompatible with “American Political Traditions.”^[16] When federal courts use customary international law to decide an ATS case, federal political branches become bound to customary international laws that may not be part of American law. Bradley and Goldsmith claim that the current application of the ATS overlooks that federal political branches, not the judiciary, have the “constitutional authority and the institutional competency” to make foreign policy decisions.^[17] According to Bradley and Goldsmith, the United States needs to reject the modern interpretation that customary international law is part of federal common law, and firmly place the enforcement of international norms in the hands of political branches.^[18] A similar argument appeared in a Washington Post articlein 2003, maintaining that the ATS was creating a democratic accountability problem. The article claimed that the ATS involves courts in foreign policy judgements — an area that courts do not have adequate expertise over.^[19] The piece also made the case that courts use the ATS to send moral messages, a role that the courts should not be playing in other nations. In the majority opinion of Jesner v. Arab Bank, Kennedy affirms this position by stating that “the political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns.”^[20]

The third anti-ATS argument that gained popularity claimed that the precedent set by the ATS could encourage cases against American officials and actors.^[21] Post 9/11, Bush was concerned about the potential use of the ATS as a way to challenge anti-terrorism programs and other international initiatives. This argument was further supported in both the Kiobel and Jesner decisions. In Jesner, Justice Kennedy, speaking for the majority, made the argument from Kiobel that if the Court continues to let the ATS be used as a way to prosecute foreign corporations, then other nations might start applying their laws in a similar way and attack American businesses.^[22]

In conclusion, scholars argue that the human rights movement, pro-international law political branches, and negative reactions to globalization in the 1990s led to the revival and the widening of the ATS. In the late 1990s, as more and more ATS cases were brought against powerful actors, arguments against the modern interpretation of the ATS gained popularity. Scholars, political leaders, and corporations claimed that continuing to use the ATS to prosecute corporations could have devastating effects on the economy. The anti-ATS crowd of the late 1990s also argued that the modern interpretation of the ATS was an overstep of judicial power and might encourage other countries to use customary international law to prosecute American corporations.

It is evident from these arguments that there is a disparity between the depth of research on the factors that widened the ATS versus the factors that narrowed it. The literature on the factors that widened the ATS is fairly conclusive, but because the ATS was limited recently, there is not much research on the exact factors that contributed to the limiting of the ATS. Most of the research on the narrowing of the ATS was published before the Kiobel decision in 2013 and focuses on narratives from the late 1990s and early 2000s. Therefore, the literature is highly speculative: few papers explore how much the arguments of the late 1990s and early 2000s actually contributed to the narrowing of the ATS, if at all.

An Analysis of the Narrowing of the ATS

This paper will attempt to fill gaps in the existing research by addressing the political factors that contributed to the recent narrowing of the ATS. To determine which narratives and actors were influential, I will examine the two most recent Supreme Court cases that limited the ATS: Kiobel and Jesner. This paper will look to newspaper articles, recent scholarship, amicus briefs, and the language of the decisions themselves to analyze the political pressures that were most influential during these cases.

Petitioners filed Kiobel v. Royal Dutch Petroleum Company in the Second Circuit Court in 2010. The petitioners were a group of Nigerians living in the United States who claimed that a number of corporations, including the Royal Dutch Petroleum Company, “aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria.”^[23] The Second Circuit Court dismissed the complaint on the grounds that the law of nations does not apply to corporations.^[24] In 2011, the Supreme Court agreed to hear the case, but decided to ignore the corporation question and instead considered if ATS cases should be able to recognize actions committed outside of the United States.^[25] In 2013, the Supreme Court ruled that the ATS cannot be applied extraterritorially. Because of the decision in Kiobel, a case must now touch the United States with “sufficient force” to be considered under the ATS. ^[26]

In Jesner v. Arab Bank, petitioners asserted that the Arab Bank, a Jordanian financial institution with a branch in New York, helped facilitate and fund terrorist attacks committed abroad.^[27] Between 2004 and 2010, plaintiffs filed five ATS lawsuits against the Arab Bank in the United States District Court for the Eastern District of New York.^[28] These cases were all dismissed and subsequently appealed. In 2017, the Supreme Court agreed to hear the case with the intention of re-examining the original Kiobel question: does the law of nations apply to corporations?^[29] In 2018, the Supreme Court concluded that foreign corporations cannot be sued under the ATS.^[30] What could have influenced these decisions?

The Rise of a Pro-Business Court

Perhaps the most tangible factor that influenced the narrowing of the ATS has been the shifting makeup of the Supreme Court. Scholars have argued that the appointment of two conservative judges (Justice Roberts in 2005 and Justice Alito in 2006) and the departure of Justice O’Connor shifted the Court politically to the right.^[31] In 2009, the decisions of the Roberts Court were conservative 65 percent of the time, the highest rate of conservative decisions since 1953.^[32] This is especially shocking when compared to the decisions made under the preceding Rehnquist Court, which issued liberal decisions more than 70 percent of the time.^[33]

Not only is the Roberts Court more conservative, but the voices that the Court is listening to are also ideologically on the right. In 2013 (the same year as Kiobel), a study that looked at the political leanings of amicus briefs concluded that, between the years 2009 and 2012, the majority of amicus briefs were conservative.^[34] Roberts’ formalist interpretation of the role each branch should play in foreign relations is one of the conservative features of the Roberts Court. Justice Roberts believes that it is the job of Congress and the president to develop policy, and is wary of enabling the Supreme Court to interpret United States law in a way that could have foreign policy implications.^[35] This formalist position is the same position that Bradley and Goldsmith held in their influential 1997 article (previously cited) that argued against the ATS.

The Roberts Court is not merely more conservative than the Courts that came before it, it is also more pro-business. The decisions the Roberts Court has made regarding businesses and corporations are what make this Court “truly distinctive.”^[36] A study published in the Minnesota Law Review in 2013 (again, the same year as Kiobel) looked at all of the Supreme Court’s decisions related to businesses from 1946 to 2011, and concluded that the Roberts Court is the most business friendly Court since World War II.^[37] The study also found that five of the most business friendly justices since 1946 have served on the Roberts Court.^[38] Arthur R. Miller, a law professor at New York University, told The New York Times that, thanks to the Roberts Court, businesses are less afraid than ever of being held legally accountable for their actions.^[39]

The reason for the pro-business shift has been contested, but one possible explanation is that the Roberts Court was merely reflecting the pro-business leanings of the Bush administration in its early years. Epstein, Landes, and Posner claim that courts often agree with the opinions of the Solicitor General, and the Solicitor General at the start of the Roberts Court was in favor of the Bush administration’s pro-business policies.^[40] However, this argument falls flat in light of the Solicitor General’s opinion during Kiobel. The Court ruled on Kiobel during Barack Obama’s presidency, and the Solicitor General at this time originally supported Kiobel’s claim.^[41] Even though the Obama administration and Solicitor General later reversed their opinion, it does not seem like the Court was influenced by the Solicitor General’s initial support of Kiobel. A more plausible explanation may be that the Bush administration appointed Justice Roberts and Justice Alito, and Bush likely chose justices who agreed with his business policies.

The pro-business leanings of the Court are evident in both the language and the rulings of the Kiobel and Jesner cases. For example, in the majority opinion of Jesner, Justice Kennedy expresses concern that allowing suits against corporations under the ATS might discourage American corporations from investing abroad.^[42] By narrowing the ATS, these cases solidified Professor Miller’s claim: because of the pro-business rulings of the court, businesses are less afraid than ever of being held accountable.

A Rejection of Universality

In Kiobel, the justices declared that in order for an ATS case to be legitimate, the case must touch and concern the United States with “sufficient force.”^[43] In other words, the mere presence of a corporation on United States soil does not suffice; the actions committed by the corporation must strongly concern the United States. The Kiobel decision was based on a rejection of extraterritoriality, an argument that was not introduced until oral arguments. Initially, the central question of the case focused on whether corporations can be held accountable under the ATS. The introduction of the extraterritoriality argument shocked the legal academy.^[44]

Scholars have argued that the Court’s rejection of extraterritoriality in Kiobel was really a rejection of universality and the idea that nations can use the principle of universal jurisdiction to prosecute human rights abuses in foreign nations. The plaintiffs in Kiobel argued that universal jurisdiction can be assumed for ATS causes of action, but recent debates have demonstrated that international acceptance of universal jurisdiction may be reversing.^[45] Near the end of the 20^th century, universal jurisdiction was legitimized as a way to fight against the practice of impunity, and by the end of the 1990s, many nations had “enthusiastically embraced” the principle of universal jurisdiction.^[46] However, the same countries that once embraced universal jurisdiction now seem to be rejecting it. In 2014, Spain — once the poster child of universal jurisdiction — passed a measure that essentially eliminated its ability to hear universal jurisdiction cases.^[47] In 2011, the United Nations started an inquiry into “the scope and application of the principle of universal jurisdiction”^[48] and concluded that member states expressed differing opinions on the scope of universal jurisdiction. A year later, General Assembly delegates from Africa and Spain criticized universal jurisdiction and claimed that there was no general understanding of the doctrine.^[49] In light of these developments, the Kiobel decision seems like a part of a broader international dismissal of universal jurisdiction.^[50]

In the United States, the rejection of universality can be partly attributed to a backlash in the late 1990s against universal jurisdiction. Scholars credit the previously mentioned 1997 Bradley and Goldsmith article with inspiring a backlash against the idea of universality.^[51] Bradley and Goldsmith encouraged the United States to reject the modern interpretation that customary international law can be used in the federal courts of the United States. After the Bradley and Goldsmith article, other influential voices challenged the rise of universality in the early 2000s. For example, in 2001, Henry Kissinger published an article that claimed that universal jurisdiction set a dangerous precedent in international law.^[52] Kissinger claimed that universal jurisdiction could place justice in the hands of tyrannical judges and worried that universal jurisdiction could become a political tool to pursue political enemies. The argument could be made that the ATS is exactly the political tool that Kissinger feared: human rights activists have used the ATS in order to pursue political enemies (corporations).

The retreat from universality can also be examined within the context of a shifting world order. Over the last few decades, the global role of the United States has waned. Rising powers such as China and Russia have challenged a United States centric global order. With the rise of powerful sovereign states, the United States has to be increasingly aware of stepping on the toes of unpredictable foreign actors.^[53] In the face of this less stable world order, the United States has lost its desire and ability to champion human rights abroad.^[54] The decision in Kiobel reflects the justices’ awareness of the “perception of changes in America’s role, power, and authority in the world,”^[55] and can be interpreted as part of a larger detraction from policies that intrude on other countries’ sovereignty.

The Fear of Foreign Entanglements

A final argument that helped narrow the ATS during Kiobel and Jesner was the concern that the ATS was causing foreign entanglements and forcing the judiciary to make decisions about international relations. This was also an argument present in the late 1990s. Bradley and Goldsmith claimed that the ATS forced the Supreme Court to make foreign policy decisions, a role that the federal political branches have the constitutional authority to play.^[56] Former president George W. Bush also pursued this argument, and claimed that the executive branch has the right to define the substance of international law and opposed judiciary involvement in foreign affairs.^[57]

In the years leading up to and surrounding Kiobel and Jesner, concerns that the ATS could lead the judiciary to create political entanglements abroad intensified. Between 2002 and 2012, an ATS suit was filed against corporations involved with the South African apartheid regime.^[58] This suit sparked anti-ATS sentiment in South Africa, and in 2004 the South African government filed a statement of interest urging the dismissal of the case. South Africa argued that the case interfered with its own post-apartheid reconstruction process and worried that the case could curb economic investments.^[59] The reaction of the South African government was clearly an influence on the Court in the years leading up to Jesner. In 2018, Justice Stephen Breyer published an op-ed in The Atlantic that touched on the issue. He focused on the difficulty of considering ATS cases when the target foreign nations place do not approve of the suit. Justice Breyer used the South African case as an example and asked that “when interpreting the Alien Tort Statute, to what extent should American courts follow the views of South Africa?”^[60]At the time, no one could answer.    Fears about foreign entanglements were fully realized during Jesner, when the case began to create diplomatic tensions with the Kingdom of Jordan. In an amicus brief, the United States argued that the Jesner case had “caused significant diplomatic tension” with Jordan.^[61] The United States brief went on to claim that Jordan is a key partner in the fight against terrorism, “especially in the global campaign to defeat the Islamic State in Iraq and Syria.”^[62] The Kingdom of Jordan (in an amicus brief) also emphasized concern over the diplomatic tensions that could arise from allowing Jesner to proceed. “By exposing Arab Bank to massive liability, this suit thus threatens to destabilize Jordan’s economy and undermine its cooperation with the United States.”^[63] Jordan also claimed that the litigation was a “grave affront” to its sovereignty.^[64]

Jordan’s sharp reaction was proven to be highly influential. During oral arguments, Justice Roberts expressed concern about the diplomatic effects that would be created by continuing to allow these kinds of ATS cases: “I’m wondering if extending it to corporate liability is, in fact, going to have the. . . problematic result of increasing our entanglements, as it obviously has here with respect to the government of Jordan.”^[65] Writing for the majority, Justice Kennedy focused on the diplomatic tensions that had already arisen because of the case and repeatedly quoted the United States’ and the Kingdom of Jordan’s amicus briefs. Ultimately, Justice Kennedy concluded that the courts are not suited to deal with the diplomatic issues caused by the prosecution of foreign corporations.^[66] Kennedy invoked the separation of powers argument that was first popularized in the late 1990s to rule that “the political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns.”^[67]

The ATS within a Global Context

The narrowing of the Alien Tort Statute has arrived at a puzzling moment. According to the Spiral Model of Human Rights Change, a decentralized system of criminal accountability has emerged since the early 2000s. This was followed by a new norm claiming that it is the responsibility of the international community to intervene if rulers are unwilling or unable to protect their citizens from human rights violations.^[68] Risse and Ropp claim that this norm has extended to the business community, and that there is an emerging international trend of corporate social responsibility.^[69] The Spiral Model considers how human rights norms are internalized within states, and identifies different types of socialization processes that work together to pressure non-compliant states to accept human rights norms. A state’s transition from a commitment to compliance with human rights norms involves many pressures “from below” and “from above.”^[70]

Applying the Spiral Model to the United States has proven challenging in the past. In the early 2000s, during the Bush administration, the United States experienced backsliding in its acceptance of human rights norms. Before 9/11, the United States had made commitments not to torture, a commitment that had been ratified and implemented in “strong domestic statutes.”^[72] After 9/11, the United States backed off on these promises and the Bush administration argued that its commitments could and should be reversed in the face of security threats.

The recent narrowing of the ATS may be another example of the United States backing off  on human rights commitments. From the 1970s until the late 1990s, the ATS was accepted as a way to prosecute human rights abusers. Following foreign pressure and diplomatic concerns, the United States reversed its course. The Kiobel and Jesner decisions suggest that, in the words of the Spiral Model, the United States is not yet complying with emerging norms of international accountability.

Conclusion

From 1980 until the late 1990s, the ATS was celebrated by human rights activists, lawyers, and scholars as a way to prosecute human rights abuses abroad. However, since the late 1990s, there have been robust efforts to curb the modern use of the ATS, and two recent ATS cases, Kiobel in 2013 and Jesner in 2018, have succeeded in reducing the scope of the ATS. Scholars generally agree on the factors that led to the widening of the ATS in the early 1980s, but there is little research on what caused the recent narrowing of the ATS. As such, this paper has attempted to fill in the holes in the research by examining the political factors that may have influenced the narrowing of the ATS during Kiobel and Jesner.

By examining newspaper articles that were published during Kiobel and Jesner, statements by the actors involved, and recent scholarship, I conclude that three of the factors that helped narrow the ATS were the rise of a pro-business Supreme Court, a rejection of universality, and the fear of foreign entanglements. The findings in this paper contribute to the existing research in three ways. First, this paper examines how certain anti-ATS arguments from the 1990s ultimately influenced the narrowing of the statute during Kiobel and Jesner. Second, this paper contributes to the slim amount of research on the political factors that existed during Kiobel and Jesner. Third, this paper analyses Kiobel and Jesner through the Spiral Model of Human Rights Change to posit that the Supreme Court of the United States has not accepted changing global norms of accountability.

If, as this paper suggests, the widening and narrowing of the ATS means that the Supreme Court has not moved from the commitment phase to the compliance phase of protecting human rights, it is likely that activists will now have to look beyond the ATS for ways to enforce this new norm of responsibility.

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Endnotes

^[1] Yossi Zur, Yossi Mendellevich, and Ron Kehrmann, “Arab Bank and terrorism: Corporate accountability gone awry.” The Jerusalem Post, October 13, 2017, https://www.jpost.com/Opinion/Arab-bank-and-terrorism-Corporate-accountability-gone-awry-507296

^[2] Thomas H. Lee, “The Safe-Conduct Theory of the Alien Tort Statute” Columbia Law Review 106, no. 4 (May 2006): 900, https://www.jstor.org/stable/4099470

^[3] Beth Stephens, “The Curious History of the Alien Tort Statute,” Notre Dame Law Review 89, no. 4 (March 2014): 1468, https://scholarship.law.nd.edu/ndlr/vol89/iss4/1/

^[4] Ariadne K. Sacharoff, “Multinationals in Host Countries: Can They Be Held Liable under the Alien Tort Claims Act for Human Rights Violations,” Brooklyn Journal of International Law 23, no. 3 (1998): 939, https://heinonline.org/HOL/P?h=hein.journals/bjil23&i=935

^[5] Beth Stephens, “The Curious History of the Alien Tort Statute,” Notre Dame Law Review 89, no. 4 (March 2014): 1478, https://scholarship.law.nd.edu/ndlr/vol89/iss4/1/

^[6] Thomas H. Lee, “The Three Lives of the Alien Tort Statute: The Evolving Role of the Judiciary in U.S. Foreign Relations,” Notre Dame Law Review 89, no. 4 (March 2014): 1647, https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1553&context=faculty_scholarship

^[7] Deitelhoff, Nicole, and Klaus Dieter Wolf. “Business and Human Rights.” Chapter. In The Persistent Power of Human Rights: From Commitment to Compliance (Cambridge: Cambridge University Press, 2013), 222.

^[8] Jonathan Drimmer, “Resurrection Ecology and the Evolution of the Corporate Alien Tort Movement,” Georgetown Journal of International Law 43, no. 4 (2012): 991-992.

^[9] Beth Stephens, “The Curious History of the Alien Tort Statute,” Notre Dame Law Review 89, no. 4 (March 2014): 1511-1512, https://scholarship.law.nd.edu/ndlr/vol89/iss4/1/

^[10] Beth Stephens, “The Curious History of the Alien Tort Statute,” Notre Dame Law Review 89, no. 4 (March 2014): 1513, https://scholarship.law.nd.edu/ndlr/vol89/iss4/1/

^[11] Gary Clyde Hufbauer and Nicholas K. Mitrokostas, “International Implications of the Alien Tort Statute,” St. Thomas Law Review 16, no. 4 (Summer 2004): 607-608, https://heinonline.org/HOL/P?h=hein.journals/stlr16&i=621

^[12] Ibid, 609.

^[13] Ibid, 620.

^[14] Ibid, 618.

^[15] Jesner v. Arab Bank, PLC, No. 16-499, 584 U.S. (2018) at 24.

^[16] Curtis A. Bradley and Jack L. Goldsmith, “Customary International Law as Federal Common Law: A Critique of the Modern Position,” Harvard Law Review 110, no. 4 (February 1997): 858.

^[17] Ibid.

^[18] Ibid, 871.

^[19] “Policing Human Rights,” The Washington Post, August 14, 2003, https://www.washingtonpost.com/archive/opinions/2003/08/14/policing-human-rights/542a31d9-4d7c-4462-87e7-cfbd01c38b0e/

^[20] Jesner v. Arab Bank, PLC, No. 16-499, 584 U.S. (2018) at 25.

^[21] Beth Stephens, “The Curious History of the Alien Tort Statute,” Notre Dame Law Review 89, no. 4 (March 2014): 1511-1512, https://scholarship.law.nd.edu/ndlr/vol89/iss4/1/

^[22] Jesner v. Arab Bank, PLC, No. 16-499, 584 U.S. (2018) at 24.

^[23] Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) at 1.

^[24] Ibid, 3.

^[25] Ibid, 3.

^[26] Ibid, 14.

^[27] Jesner v. Arab Bank, PLC, No. 16-499, 584 U.S. (2018) at 1.

^[28] Ibid, 3.

^[29] Ibid, 2.

^[30] Ibid, 1.

^[31] Robert Citron, “Seven Ways of Looking at Kiobel v. Royal Dutch Petroleum and the Supreme Court Under Chief Justice John Roberts,” Verdict, July 3, 2013, https://verdict.justia.com/2013/07/03/seven-ways-of-looking-at-kiobel

^[32] Adam Liptak, “Court Under Roberts Is Most Conservative in Decades,” The New York Times, July 24, 2010, https://www.nytimes.com/2010/07/25/us/25roberts.html?pagewanted=all&module=inline

^[33] Ibid.

^[34] Adam Chandler, “Cert.-stage amicus “all stars”: Where are they now?” SCOTUSblog, April 4, 2013, https://www.scotusblog.com/2013/04/cert-stage-amicus-all-stars-where-are-they-now/

^[35]  Robert Citron, “Seven Ways of Looking at Kiobel v. Royal Dutch Petroleum and the Supreme Court Under Chief Justice John Roberts,” Verdict, July 3, 2013, https://verdict.justia.com/2013/07/03/seven-ways-of-looking-at-kiobel

^[36] Adam Liptak, “Corporations Find a Friend in the Supreme Court,” The New York Times, May 4, 2013, https://www.nytimes.com/2013/05/05/business/pro-business-decisions-are-defining-this-supreme-court.html

^[37] Lee Epstein, William M. Landes, and Richard A. Posner, “How Business Fares in the Supreme Court,” Minnesota Law Review 97 (April 2013): 1431-1472, https://www.minnesotalawreview.org/wp-content/uploads/2013/04/EpsteinLanderPosner_MLR.pdf

^[38] Ibid, 1471.

^[39]  Adam Liptak, “Corporations Find a Friend in the Supreme Court,” The New York Times, May 4, 2013, https://www.nytimes.com/2013/05/05/business/pro-business-decisions-are-defining-this-supreme-court.html

^[40] Lee Epstein, William M. Landes, and Richard A. Posner, “How Business Fares in the Supreme Court,” Minnesota Law Review 97 (April 2013): 1432, https://www.minnesotalawreview.org/wp-content/uploads/2013/04/EpsteinLanderPosner_MLR.pdf

^[41] Emily Bazelon, “Torture Inc,” Slate, October 1, 2012, https://slate.com/news-and-politics/2012/10/the-supreme-court-considers-whether-the-united-states-can-be-the-court-of-last-resort-for-aliens-who-have-suffered-human-rights-abuses-abroad.html

^[42] Jesner v. Arab Bank, PLC, No. 16-499, 584 U.S. (2018) at 24.

^[43] Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) at 14.

^[44] Eugene Kontorovich, “Kiobel Surprise: Unexpected by Scholars but Consistent With International Trends,” Notre Dame Law Review 89, no. 4 (March 2014): 1672, http://ssrn.com/abstract=2353226

^[45] Ibid, 1685.

^[46] Ibid, 1682.

^[47] Eugene Kontorovich, “Kiobel redux: Universal jurisdiction gets ever less universal,” The Washington Post, February 13, 2014, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/13/kiobel-redux-universal-jurisdiction-gets-ever-less-universal/

^[48] U.N. GAOR, 66th Sess., 12th mtg. at 2, U.N. Doc. A/C.6/66/SR.12 (Oct. 12, 2011).

^[49] Sixty-Fifth Session: The Scope and Application of the Principle of Universal Jurisdiction (Agenda Item 86), GEN. ASSEMBLY UNITED NATIONS, http://www.un.org/en/ga/sixth/65/ ScopeAppUniJuri.shtml

^[50]  Eugene Kontorovich, “Kiobel Surprise: Unexpected by Scholars but Consistent With International Trends,” Notre Dame Law Review 89, no. 4 (March 2014): 1682, http://ssrn.com/abstract=2353226

^[51]  Ibid, 1680.

^[52] Henry A. Kissinger, “The Pitfalls of Universal Jurisdiction,” Foreign Affairs, July/August 2001, https://www.foreignaffairs.com/articles/2001-07-01/pitfalls-universal-jurisdiction

^[53] Kenneth Anderson, “Symposium: After “universality” – Emphasizing territory and nationality in a world of increasingly competitive sovereign powers,” SCOTUSblog, July 25, 2017, https://www.scotusblog.com/2017/07/symposium-universality-emphasizing-territory-nationality-world-increasingly-competitive-sovereign-powers/

^[54] Thomas H. Lee, “The Three Lives of the Alien Tort Statute: The Evolving Role of the Judiciary in U.S. Foreign Relations,” Notre Dame Law Review 89, no. 4 (March 2014): 1648, https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1553&context=faculty_scholarship

^[55] Kenneth Anderson, “Symposium: After “universality” – Emphasizing territory and nationality in a world of increasingly competitive sovereign powers,” SCOTUSblog, July 25, 2017, https://www.scotusblog.com/2017/07/symposium-universality-emphasizing-territory-nationality-world-increasingly-competitive-sovereign-powers/

^[56] Curtis A. Bradley and Jack L. Goldsmith, “Customary International Law as Federal Common Law: A Critique of the Modern Position,” Harvard Law Review 110, no. 4 (February 1997): 858.

^[57] Beth Stephens, “The Curious History of the Alien Tort Statute,” Notre Dame Law Review 89, no. 4 (March 2014): 1501-1502, https://scholarship.law.nd.edu/ndlr/vol89/iss4/1/

^[58] “Apartheid reparations lawsuits (re So. Africa),” Business and Human Rights Resource Centre, https://www.business-humanrights.org/en/apartheid-reparations-lawsuits-re-so-africa

^[59] John Bellinger, “Enforcing Human Rights in U.S. Courts and Abroad: The Alien Tort Statute and Other Approaches,” The 2008 Jonathan I. Charney Lecture in International Law, Vanderbilt Law School, Nashville, TN, April 11, 2008

^[60] Stephen Breyer, “America’s Courts Can’t Ignore the World,” The Atlantic, October 2018, https://www.theatlantic.com/magazine/archive/2018/10/stephen-breyer-supreme-court-world/568360/

^[61] Brief for United States as Amicus Curiae 30.

^[62] Brief for United States as Amicus Curiae 31.

^[63] Hashemite Kingdom of Jordan as Amicus Curiae 3.

^[64] Ibid.

^[65] Transcript of Oral Argument at 7, Jesner v. Arab Bank, PLC, No. 16-499, 584 U.S. (2018).

^[66] Jesner v. Arab Bank, PLC, No. 16-499, 584 U.S. (2018) at 26, 27.

^[67] Ibid, 25.

^[68] Thomas Risse and Stephen C. Ropp, “Introduction and overview” Chapter. In The Persistent Power of Human Rights: From Commitment to Compliance (Cambridge: Cambridge University Press, 2013), 3.

^[69] Ibid, 4.

^[70] Ibid, 10.

^[71] Thomas Risse and Stephen C. Ropp, “Introduction and overview” Chapter. In The Persistent Power of Human Rights: From Commitment to Compliance (Cambridge: Cambridge University Press, 2013), 8.

^[72] Kathryn Sikkink, “The United States and torture: does the spiral model work?” Chapter. In The Persistent Power of Human Rights: From Commitment to Compliance (Cambridge: Cambridge University Press, 2013), 162.