Hannah R. Bornstein
J.D., Indiana University School of
Law–Bloomington, 2007. B.A., Brandeis University, 2002, History and German.
Articles by this Author
The Alien Tort Claims Act in 2007: Resolving the Delicate Balance Between Judicial and Legislative Authority
- By Hannah R. Bornstein
- Published 10/6/2007
- Volume 82, Issue 4
Part I of this Note presents the evolution of
cases interpreting the ATCA. The evolution of case law shows how, beginning
with Filartiga and ending with Sosa, ATCA case law has departed from
the original intent of the statute. Part II addresses the separation-of-powers
argument and argues that post-Sosa,
absent congressional action to effectively amend or repeal the ATCA, federal courts
are not violating the separation-of-powers principle by determining what acts
violate customary international law under the ATCA. Part III then examines the
standard of corporate liability a federal court should establish in the event
that Congress fails to amend or repeal the ATCA. Because courts and
commentators continue to look to the Ninth Circuit's decision in Unocal, this Note examines the
ambiguities the Ninth Circuit created in Unocal.
This Note then argues that the standard set by the Ninth Circuit is incorrect,
and recommends the standards federal courts should apply in the future, absent
congressional action to amend or repeal the ATCA. Part IV then recommends the
amendments Congress should make to the ATCA. Congress must specify which acts
will create liability under the ATCA not only because such action will end the
separation-of-powers debate, but also because it will confer democratic
legitimacy upon the idea that if corporations commit grave breaches of international law, they can and will be held
accountable.
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