Sosa V. Alvarez-Machain and the End of History

By Casto, William | Georgetown Journal of International Law, Summer 2012 | Go to article overview

Sosa V. Alvarez-Machain and the End of History


Casto, William, Georgetown Journal of International Law


As the title suggests, I believe that the Supreme Court's decision in Sosa v. Alvarez Machain (1) essentially makes the Mien Tort Statute (ATS) 2 and its eighteenth-century backdrop irrelevant. Nevertheless, and notwithstanding my misgivings, there is some value to understanding how we got to where we are today.

Although once a mystery, the origins of the ATS are now reasonably well-understood. In 1781, the Continental Congress asked the various states to enact laws for remedying violations of the law of nations. Except for Connecticut, however, the request fell on deaf ears. The next year, Connecticut enacted a statute providing criminal sanctions and a civil damage remedy for violations of the law of nations. This statute was the prototype for the ATS.

A few years later, in 1784, a French adventurer committed a highly technical battery against Mr. Marbois, the Secretary of the French legation, and the incident created a diplomatic tempest in a teapot. The Continental Congress was powerless to take action against the malefactor. Fortunately, the State of Pennsylvania stepped in and successfully prosecuted the adventurer. Pennsylvania had not enacted a statute like Connecticut's. Therefore, the theory of the prosecution was that an assault upon a foreign ambassador was a violation of the law of nations and that, under the common law, Pennsylvania could punish such violations.

When Oliver Ellsworth drafted much of the Judiciary Act of 1789, he remembered the earlier Connecticut statute. He had been a member of both the Connecticut upper house and the Continental Congress when the statute was enacted. Ellsworth personally drafted the ATS, which vested the federal trial courts with original jurisdiction to provide a civil remedy for violations of U.S. treaties and the law of nations. (3)

The Judiciary Act was a wondrous work of political compromise. For example, the Act resolved a significant political controversy regarding the 1783 Treaty of Paris, which had ended the Revolutionary War. As part of the Treaty, the United States had agreed that outstanding debts owed by Americans to British creditors would be repaid. The state courts, however, notoriously violated the Treaty and refused to provide British creditors with a remedy. Many in Congress feared that the federal courts would enforce the Treaty. In order to obtain the votes needed to pass the Judiciary Act, Ellsworth agreed to a $500 amount-in-controversy minimum to the federal courts' alienage jurisdiction over suits by British creditors. Because virtually all of these debts were for less than $500 and common-law pleading did not allow the claims to be joined, the $500 limitation effectively forced the British creditors into hostile state courts. The hidden hand of the Treaty of Paris is also evident in the ATS. Because the ATS did not have an amount-in-controversy provision, Ellsworth had to make clear that the provision did not vest the federal courts to enforce the Treaty in a contracts case. He did this by limiting ATS jurisdiction to "tort[s] only." (4)

Although there have been a number of interesting historical studies of the ATS, the Supreme Court's 2004 decision in Sosa v. Alvarez-Machain changed the rules of the game. (5) We still see historical analyses, but as a practical matter, they are dead men walking. In Sosa, the Court held that the ATS vests the federal courts with a narrow subject matter jurisdiction but does not create a statutory cause of action. Instead, the cause of action is a federal common law claim in which the norm that establishes the unlawfulness of the defendant's conduct comes from international law, which is classified as a peculiar form of federal common law. In contrast, the availability of a damage remedy is a function of traditional domestic federal common law, and the Court discussed a number of factors that should guide the courts in determining whether a damage remedy is available. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Sosa V. Alvarez-Machain and the End of History
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.