In Richard Wagner's opera Lohengrin, a knight appears at the prayers of a maiden to defend her against accusations of murder. The knight agrees to wed her on the condition that she never ask his name or from whence he came. As such, when Judge Friendly called the Alien Tort Statute ('ATS') a 'legal Lohengrin,' he was referencing the peculiar origin and nature of this aged statute. Although we are well aware of the origins of the ATS, its inactivity for almost 200 years clouded it in an aura of mystery. Now, almost thirty years after its revival by the Second Circuit, that same court may have stripped the ATS of its ability to defend its maiden, the victims of tortious actions attributable to corporate entities. The ATS has eluded much appellate review due to settlements and quick dismissals. The Supreme Court has seriously considered its jurisdictional grant in only one case. As such, there remains much mystery about its exact function and application. By requiring that courts look to the corpus of international law to determine jurisdiction, the ATS opens the door to judicial conjecture and confusion on the content of the 'law of nations.' Although the recognition of what constitutes substantive international law rules (such as standards for torture, extrajudicial killings, or forced exile) is a difficult enough task for the lower courts of the federal judiciary, the scope of those rules, such as their source, has equally led to conflict among the courts.
Tyler G. Banks,
CORPORATE LIABILITY UNDER THE ALIEN TORT STATUTE: THE SECOND CIRCUIT'S MISSTEP AROUND GENERAL PRINCIPLES OF LAW IN KIOBEL V. ROYAL DUTCH PETROLEUM CO.,
Emory Int'l L. Rev.
Available at: https://scholarlycommons.law.emory.edu/eilr/vol26/iss1/10