May the Fourth Be with You: Charting the Future of Corporate Liability Under the Alien Tort Statute After Jesner v. Arab Bank

Abstract

The Alien Tort Statute ( the “ATS”) has been the subject of much curiosity ever since it became a conduit for human rights lawsuits nearly 40 years ago. Many of these lawsuits have been directed at corporate defendants, with businesses around the world accused of conscience-shocking behavior. However, the Supreme Court has in recent years restricted the scope of corporate ATS liability. In 2013, the Court held in Kiobel that the presumption against extraterritoriality applies to the ATS, and in 2018, it held in Jesner that foreign corporations cannot be sued under the ATS. In the wake of these developments, observers have questioned whether the statute’s vitality is reaching its end. This Note charts the path forward for the ATS. After tracing the development of the statute from its murky Founding origins to its modern incarnation as a powerful litigation tool, the Note examines how several circuits have analyzed the issues of corporate liability and the presumption against extraterritoriality under the ATS. The Note ultimately argues that the Fourth Circuit’s approach provides the best regime for the ATS in light of Jesner and the other considerations that have long informed ATS cases.