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The interpretation and application of the Alien Tort Statute (ATS) has challenged federal courts for the last two decades in the twentieth century. The ATS, a single sentence within the Judiciary Act of 1789, provides United States federal courts with original jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Following a lengthy dormant period, federal courts resurrected the ATS in the 1980s to grant federal jurisdiction over international human rights claims where both the plaintiff and defendant are of foreign origin. In the late twentieth and early twenty-first centuries, however, courts have struggled to find a consistent approach to adjudicating claims brought against multinational corporate defendants. As ATS jurisprudence has evolved, courts have largely narrowed its application, reducing foreign plaintiffs’ abilities to have their claims adjudicated in American federal courts.
This Note will trace the history of the modern use of the ATS with a focus towards the development of its use against multinational corporations. It will discuss the difficulty courts have faced in limiting the ATS to specific torts, as well as the difficulties courts have faced in applying the ATS in response to the restrictive territorial test outlined in Kiobel. This Note will also argue that a broad and inclusive “touch-and-concern” test to displace the presumption against extraterritoriality creates more problems than it solves. Instead, this Note suggests that such boundaries are best determined by new legislation aimed specifically at the modern day, multinational corporations.