Document Type

Article

Publication Title

Georgetown Law Journal

Publication Date

2012

Abstract

Despite the voluminous academic literature on the origins, purpose, and significance of the Alien Tort Statute (ATS), there has been very little attention paid to the policy consequences of allowing wide-ranging litigation under the statute. Alan Sykes's economic analysis of ATS litigation against corporations, therefore, fills an important gap in the ATS literature. It is the first attempt to apply a rigorous law and economics analysis to the ATS. This intervention is especially important as the Supreme Court reconsiders the role of federal courts in the management of ATS litigation.

This brief Response will consist of two Parts. First, I will review the academic debate on the use of the ATS, with a special focus on the use of the ATS to sue business corporations. Advocates of an expansive use of the ATS have often argued that ATS litigation has an important expressive purpose to assist in the development and internalization of international law norms. To protect this "norm development" purpose, ATS defenders have argued that federal courts can and should be able to manage the development of legal standards governing corporate ATS litigation. Critics have attacked the doctrinal foundation for this use of the ATS but have rarely offered functional or policy critiques of the consequences of an expansive reading of the ATS.

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