“Alien Tort Cases Will Survive Supreme Court Trim,” predicts an essay published Monday in the Daily Report. Co-authoring the essay were Peter B. “Bo” Rutledge, Herman Talmadge Chair and Dean at the University of Georgia School of Law, and Michael Baker (JD’18), a Law Clerk for Superior Court Judge Ron Mullins, Chattahoochee Judicial Circuit. (Among other achievements, Baker served last year as Executive Conference Editor for the Georgia Journal of International & Comparative Law.)

In their essay, Rutledge and Baker noted that in the last several decades federal courts have adjudicated many lawsuits testing the scope of the Alien Tort Statute of 1789, which states:

The district courts shall have original jurisdiction of 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.

Most recently, that litigation gave rise to the April 2018 decision in Jesner v. Arab Bank, in which the U.S. Supreme Court held that the statute does not permit suits against foreign corporations.

Taking issue with commentators who have viewed Jesner as “a blow … to the cause of human rights,” the essay outlined, with references to other federal cases, “three anticipated battlegrounds in future ATS litigation.” Specifically, the decision in Jesner leaves open:

1. Whether the statute precludes suits against all corporate defendants, or just against foreign corporations.
2. Whether corporate officers remain liable even if lawsuits may not proceed against the corporation with which they are affiliated.
3. What is the “degree of domestic conduct necessary for the ATS to have effect.”

The authors thus conclude:

“[T]he only certainty is that ATS litigation remains a ripe area for international human rights litigation.”

Their full essay is here.