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The Supreme Court as a Tool of Foreign Policy?: Why a Proposed Flexible Framework of Established Judicial Doctrine Better Satisfies Foreign Policy Concerns in Alien Tort Statute Litigation

By Lucas Curtis. Full Text.

Rarely invoked in almost two hundred years, the Alien Tort Statute (ATS) emerged as the main vehicle for bringing internationally-recognized human rights claims into United States courts in the 1980s and the 1990s. However, the turn of the twenty-first century has brought a series of Supreme Court decisions that have severely limited the scope and applicability of the ATS, including the recent 2018 decision, Jesner v. Arab Bank. The Court has created hard-line rules, including barring suits involving extraterritoriality and foreign corporate liability, under the concern of “foreign policy considerations.” However, the amorphous justification of “foreign policy considerations” leaves little guidance to lower courts evaluating foreign policy implications and hampers the ability of the political branches to engage in foreign policy-making through courts. The evaluation of foreign policy concerns invites the following questions: (1) what are the specific foreign policy consequences with which the Court is concerned; and (2) what judicial doctrines and mechanisms are best suited to remedy these concerns?

This Note offers a flexible three-step framework that incorporates existent foreign policy judicial doctrine to satisfy the specific foreign policy concerns raised in the evaluation of ATS claims. First, the Court should apply a two-part, ATS-specific Political Question inquiry that satisfies the judicially manageable standards concern. Second, the Court should employ the Exhaustion principle in order to comply with international law and avoid foreign criticism. Third, the Court should focus on the conduct of defendants and use the Act of State doctrine to avoid infringements of foreign sovereignty. This framework is then applied to a recent ATS case in the Ninth Circuit, Doe v. Nestle, to illustrate its application in lower courts. This Note concludes that this alternative framework better satisfies constitutional separation of powers requirements while maximizing foreign policy-making capacities of the political branches.