ABDULLAHI: A LOST OPPORTUNITY TO CLARIFY ALIEN TORT STATUTE JURISPRUDENCE FOR CORPORATIONS

Benjamin P. Harbuck, Washington University

Abstract

The Supreme Court recently denied certiorari from the Second Circuit’s Abdullahi v. Pfizer, Inc, an Alien Tort Statute (ATS) case concerning Pfizer’s nonconsensual medical testing of the antibiotic Trovan after a meningitis epidemic in Nigeria. The seminal Supreme Court ATS case of Sosa v. Alvarez-Machain, with its oft-quoted “vigilant doorkeeping” requirement, provided the basis for many of the arguments in Abdullahi. Yet the Second Circuit failed to act as a vigilant doorkeeper, extending ATS jurisdiction to situations that should not be considered to rise to the standard required by Sosa. This paper therefore advocates that the Supreme Court accept an ATS case and solidify two stricter standards for corporate or private actor liability in novel applications of the ATS: (1) Color of law—The state (a) actively and jointly participates with corporations in the specific conduct at issue, or (b) provides “significant state aid” to a private contractor; or (2) Purely Private Actors—The actions of a corporation or other purely private actor (a) could reasonably rise to the level of war, or (b) are outside of domestic boundaries, meaning (i) physical boundaries for all ATS cases, or (ii) domestic legal enforcement boundaries for suits based on well-established ATS causes of action. These standards come from Sosa and Lugar v. Edmonson Oil Co., and protect both foreign plaintiffs and corporations.