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. …