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Beyond Formalism In Foreign Affairs: A Functional Approach To The Alien Tort Statute, John C. Yoo, Julian Ku

John C Yoo

This paper discusses the functional ability of federal courts to incorporate customary international law (CIL) through the vehicle of the Alien Tort Statute. In last Term's Sosa v. Alvarez Machain, the Supreme Court concluded that the Alien Tort Statute (ATS) is merely a jurisdictional statute, but also refused to stop the lower courts from allowing aliens to seek damages in federal court for certain international law violations. We use the Court's under-theorized conclusion as an opportunity to move beyond largely inconclusive formalist debates about the ATS's text, structure, and history. Instead, we conduct a comparative institutional analysis of the role …