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In September 2010, a two-judge Second Circuit majority ruled that corporations are immune from liability under the Alien Tort Statute (“ATS”). This statute, which grants aliens access to federal district courts, has emerged as a controversial tool for international norm enforcement in the last thirty years. The unexpected decision to foreclose corporate liability has generated a wave of criticism from human rights activists and international law scholars who claim that the decision is grounded in a fundamental misunderstanding of international law.

This commentary examines the Kiobel decision against other recent interpretations of the ATS, especially those following the Supreme Court’s decision in Sosa v. Alvarez-Machain. Although corporate immunity makes little sense doctrinally, this commentary attempts to provide a rationale for the Second Circuit’s decision. The Kiobel decision was largely the product of policy concerns about expanded use of the ATS. And it stems from the Supreme Court’s mandate to lower federal courts to exercise “vigilant doorkeeping”: narrowing ATS claims to those that arise under “customary international norms.” Confusion over what body of law determines enforcement standards has resulted in varying interpretations of ATS jurisdictional boundaries, and has contributed to the vigorous Second Circuit decision in Kiobel.


Business Organizations Law | International Law | Law