by Ben Salinger*
The Alien Tort Statute (“ATS”) permits foreign nationals to file lawsuits in United States district courts for violations of international law, but the statute is silent on the types of parties they can sue. The Supreme Court has held that foreign corporations cannot be sued under the ATS. However, the Court has left open the question of whether the same immunity extends to domestic corporations, and a circuit split has emerged on that issue. The Second and Ninth Circuits treat corporate liability as a “judicially created” cause of action beyond what Congress authorized in the ATS, and, accordingly, they analyze whether there is an established norm in international law of imposing liability on corporations that could justify creating a new “corporate liability” cause of action. The Fourth and D.C. Circuits, on the other hand, view corporate liability as a question of defendant identity, allowing corporations to be held liable so long as it is permitted by the ATS itself and the United States Constitution. This Contribution argues that the Supreme Court should adopt the Fourth and D.C. Circuits’ domestic law approach and hold that domestic corporations are not categorically immune from ATS liability for three reasons. First, the domestic law approach best reflects the Court’s own ATS jurisprudence; second, the statute’s text, purpose, and founding era history compel a rejection of categorical corporate immunity; and finally, explicit adoption of this approach preserves an important pathway to relief for victims of corporate human rights abuses in the wake of the Court’s recent decision in Cisco Systems, Inc. v. Doe I.