April 7, 2008

Hofstra lawprof Julian Ku in the Federalist Society publication Engage notes that after 2004's Sosa v. Alvarez-Machain, the Supreme Court was praised for taking a middle position on the Alien Tort Statute, leaving the door "ajar" but not wide open for suits based on alleged violations of international law, especially international human rights law. However, writes Ku, lower federal court interpretations of Sosa, on topics like "aiding and abetting" liability,

have actually exposed multinational corporations to potentially enormous liability for overseas cooperation and business dealings with foreign governments. Such judicial development of important but highly debatable standards of liability under international law, I argue, undermines the idea that Sosa represents any meaningful limitation on the ability of plaintiffs to pursue wide-ranging expensive litigation against a broad array of multinational corporations.