Keitner: Conceptualizing Complicity in Alien Tort Cases

Chimène I. Keitner (Univ. of California - Hastings College of Law) has posted Conceptualizing Complicity in Alien Tort Cases (Hastings Law Journal, forthcoming). Here's the abstract:

The Alien Tort Statute (ATS) indisputably brings international law into U.S. courts. The question is: How much international law? The U.S. Supreme Court was recently precluded from addressing this question in cases involving alleged corporate complicity in the crime of apartheid because four judges recused themselves, leaving the court without a quorum. The answer to this question can determine the outcome of cases brought against corporations for alleged complicity in international law violations by foreign governments. It will also shape the extent to which U.S. courts in ATS cases continue to interpret and apply international law, thereby contributing to the development and enforcement of international law standards.

This Article provides an analytic roadmap for courts confronting accomplice liability claims in ATS cases. Part I concludes that U.S. courts should look to international law on accomplice liability, rather than federal common law. Part II examines international law doctrine on accomplice liability and concludes that the Second Circuit in the South African apartheid cases misstated the applicable standard, which prohibits knowingly providing assistance that has a substantial effect on the commission of the wrongful act. Part III considers the implications of this doctrinal analysis for broader concerns about the indeterminacy of international law and notions of international comity. By applying well-established international law to defendants' conduct, U.S. courts can provide domestic remedies for international wrongs while avoiding criticisms of illegitimately applying U.S. substantive law outside U.S. territory.