Byline: Daniel J. Popeo and Glenn G. Lammi, SPECIAL TO THE WASHINGTON TIMES
Only in America could enterprising lawyers turn a 218-year old, 32-word statute meant to redress piracy into a weapon of mass tort litigation. This law is the Alien Tort Statute (ATS), a tiny part of the larger 1789 Judiciary Act. Contingent-fee attorneys have commandeered this law and are using it to file massive lawsuits in U.S. courts on behalf of foreign plaintiffs against foreign defendants for alleged harm that occurred far outside our borders.
The suits not only needlessly clog our courts, but they also raise the fundamental question of who should make U.S. foreign-policy decisions: unelected judges and lawyers, or the legislative and executive branches? U.S. Court of Appeals Judge Henry Friendly in 1975 called the ATS a "legal Lohengrin .. no one seems to know whence it came." For nearly two centuries it laid fallow until it was given new life by a 1980 federal appeals court decision concluding that the ATS provides a private right to sue for violations of international law.
After that decision, ATS filings exploded. Until the mid-1990s most ATS plaintiffs were human-rights activists suing foreign individuals or foreign governments. Financial damage awards were rare, but the factually sympathetic cases successfully advanced the law in a pro-plaintiff direction. Eventually activists began suing private companies based on a highly novel vicarious liability theory because oil companies benefited from the protection of foreign soldiers or companies did business in apartheid-era South Africa, they had "aided and abetted" alleged foreign governments' ATS violations.
Once the focus shifted to deep-pocketed defendants, plaintiffs' lawyers took notice, and filed suits which further probed the limits of the ATS seeking virtually limitless liability. Aided by expansive decision-making of federal appeals courts, the tort lawyers conceived a startling ambition: to convert this obscure one-sentence jurisdictional provision into a source of modern-day mass tort liability.
In 2004, the U.S. Supreme Court finally took up the issue of liability under the ATS. In Sosa v. Alvarez-Machain, the Court stated that the law only gave federal courts jurisdiction over a very narrow set of cases involving aliens. The Court wrote strongly about its concern over the "collateral consequences" of ATS suits, especially how they could intrude upon the executive branch's conduct of foreign policy. The Sosa opinion didn't foreclose all ATS lawsuits. While it left the "door ajar," the Court instructed lower courts to conduct "vigilant doorkeeping," against intrusion on the conduct of U.S. foreign policy.
With the door ajar, ATS lawsuits continued to proliferate. …