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Tyler R. Giannini, Living with History: Will the Alien Tort Statute Become a Badge of Shame or Badge of Honor?, Yale L.J. F. 814 (2022).

Abstract: On the same day that Juneteenth was announced as a U.S. national holiday to honor the end of legalized slavery in the United States, the Supreme Court ruled that claims involving Nestlé USA’s complicity in the enslavement of children in the cocoa industry could not proceed under the 1789 Alien Tort Statute (ATS) because most of the allegations involved conduct outside the United States. While the decision was the latest setback for human rights cases, it also highlighted the connection between historical legacies and contemporary debates that have been ever-present in modern ATS jurisprudence. This Essay grapples with this living history and specifically the questions of extraterritoriality and U.S. corporate-actor liability under the ATS. History—including newly unearthed materials from George Washington’s presidency—makes clear the Founding generation was concerned with providing remedies for actions by private U.S. subjects that might embroil the country in foreign-affairs problems or undermine the nation’s status among “civilized” nations. This historical concern with U.S. nationality jurisdiction is glaringly absent from not only the Court’s holding in Nestlé but also its discussion. But the Nestlé corporation’s nationality almost certainly mattered. Otherwise, the Court could have simply extended an earlier holding that causes of action against foreign corporations were not permitted under the ATS. In considering this proposition, the Essay looks past Nestlé’s narrow extraterritorial ruling and interrogates the importance of the yet-to-be answered relevance of U.S. nationality in future ATS jurisdictional analysis. The Essay concludes that U.S. subject liability remains possible and would bring the Court back in line with the clear eighteenth-century historical paradigm on the question of U.S.-actor liability.