The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations

The thesis of this article is that section 1350 (of the Judicial Code) should be construed as liberally as possible. Although there is no need to limit Alien Tort Claim litigation, a liberal construction of section 1350 would not impede the development of appropriate limits. Cases falling within a broad reading of the statute could nevertheless be dismissed on the basis of the act of state doctrine or other grounds. In Part II of this article, the problem of rules of decision under international law, United States domestic law, and foreign domestic law is addressed. Part III then examines the legislative history of the Alien Tort Claim Act and demonstrates that the language, purpose, and general eighteenth century background of the Act all suggest a liberal construction. Part IV of the article considers the pertinent constitutional provisions and policy considerations. The article concludes that section 1350 vests the district courts with the fullest jurisdiction authorized by the Constitution, thereby providing the means by which to obtain a uniform national approach to section 1350 litigation.