The Curious Case of Corporate Liability Under the Alien Tort Statute: A Flawed System of Judicial Lawmaking

Julian Ku, Hofstra University School of Law

Abstract

There is a widespread consensus in the United States that private corporations owe duties under customary international law and can be subject to lawsuits under the Alien Tort Statute. The consensus is so broad that there is not a single court decision in the United States, and barely any legal scholarship, that dissents from this view. Despite this wide support, the consensus in favor of corporate liability for violations of customary international law is wrong. A survey of international legal sources would find embarrassingly little evidence of an international consensus (or even of international support) in favor of imposing liability on private corporations for general violations of customary international law. This lack of an international consensus is both surprising and embarrassing because U.S. courts that have analyzed the issue have held the liability of private corporations satisfies the supposedly exacting “specific, universal, and obligatory” standard set forth by the U.S. Supreme Court in Sosa v. Alvarez-Machain. This curious and unjustified judicial consensus, I argue, demonstrates that the system of judicial lawmaking endorsed by Sosa is fundamentally flawed.