Childress on the Alien Tort Statute and the Next Wave of International Litigation

Donald Earl Childress III (Pepperdine University School of Law) has posted The Alien Tort Statute, Federalism, and the Next Wave of International Law Litigation on SSRN.

This Article examines the question of what role international law should play in domestic courts through the lens of the Alien Tort Statute (“ATS”) and points to the next battlegrounds for transnational litigation under state and foreign law. The Article provides clarity as to why federal appellate courts have limited ATS cases. In light of federal retrenchment, this Article uniquely explores the potential for a new wave of international law litigation under state and foreign law and the potential for that wave to reach state courts. The Article analyzes forthcoming issues of federalism, choice of law, preemption, and due process that will arise as part of the next wave of international law litigation. After critically evaluating these areas, the Article provides a scholarly agenda for further study related to the question of international law in domestic courts. The Article seeks to apply the rich academic literature produced to date by such eminent scholars as Curtis Bradley, Jack Goldsmith, Harold Koh, and others to this new wave of transnational litigation. In so doing, it creates a new legal and normative framework for further studies regarding the role of international law in U.S. courts. The Article concludes by proposing a congressional fix that uses the Class Action Fairness Act of 2005 as a model for alleviating federalism concerns that exist when international law cases are brought in domestic courts.

The paper is forthcoming in the Georgetown Law Journal.

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About Gilles Cuniberti

Gilles Cuniberti is a professor of law at the University of Luxembourg. Previously, he taught for 10 years at the Faculty of Law of Paris 12 University (Paris Val-de-Marne). His primary teaching and research interests are comparative law, conflict of laws, international arbitration and international litigation. He is a regular contributor to the Journal de Droit International (Clunet). He has been a visiting faculty at Duke Law School, Renmin University of China and Sheffield Hallam University. He holds a Doctorate in Law from Paris I Panthéon-Sorbonne University and an LL.M. degree from Yale Law School. He was also a Paris-Oxford Doctoral Program Scholar for a year at Trinity College, Oxford. He is admitted to the Paris Bar and practiced on a part-time basis in the Paris office of a leading English firm from 1999 to 2004. SELECTED ARTICLES: Beyond Contract - The Case for Default Arbitration in International commercial Disputes, 32 FORDHAM INT'L L.J. 417 (2009) Le principe de territorialité des voies d'exécution, JOURNAL DU DROIT INTERNATIONAL 2008.963 The Recognition of Judgments Lacking Reasons in Europe: Access to Justice, Foreign Court Avoidance and Efficiency, 57 INT’L & COMP. L. Q. 25 (2008) L’apprezzamento dell’efficacia della clausola arbitrale da parte del giudice statale : un conflitto tra Italia e Francia, 21 DIRITTO COMMERCIO INTERNAZIONALE 2007.789 (with M. Winkler) E-mail: