Supreme Court further reels in Alien Tort Statute

In my new Cato piece, I welcome the Supreme Court’s 5-4 decision in Jesner v. Arab Bank, in which it continued its series of cases cabining the for-a-while-adventurous scope courts had begun to assign to the Alien Tort Claims Act of 1789, often called the Alien Tort Statute. In its new decision, the Court ruled that unless Congress provides by law for such application, the statute does not apply to foreign corporations as distinct from natural persons. “Issues of foreign affairs are peculiarly the province of the political branches, which can weigh (and take responsibility for) the dangers of engendering friction with foreign sovereigns by extending liability…. The Court has simply made it clear that if the United States courts are to become a sort of human rights policeman to the world, it is Congress that will need to decide to fit them out for that task.” Justices Gorsuch, Alito, and Thomas, concurring, would have gone further in confining the ATS to the instances in which Congress has chosen to create a cause of action through legislation. More on Jesner from Amy Howe at SCOTUSBlog here and here; related on Kiobel in 2013 here, here, etc. More: Federalist Society “Courthouse Steps” with William Casto and Sam Estreicher.


  • What is “cabining”?

  • Limiting to certain circumstances. Picture a log cabin being built around the decision to keep it in.

  • Merriam Webster:

    transitive verb: confine, restrain
    significantly cabins the discretion of administrators —A. M. Dershowitz