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Abstract

In the past thirty-five years, international human rights lawyers and, more recently, international environmental lawyers, have been invoking the Alien Tort Claims Act (ATCA) as a tool to prosecute human rights abuses committed abroad by transnational corporations (TNs) in U.S. federal courts. The ATCA provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Although plaintiffs' lawyers have experienced some success in the human rights context, most claims of environmental abuses have failed. In all these cases, the reluctance of judges to enforce the ATCA against private actors is palpable and, to some extent, puzzling. The more obvious reasons for this judicial reluctance are tied to separation of powers concerns, particularly the fear of over-involvement in foreign affairs and the resulting embarrassment that may befall the political branches should the judiciary meddle in this area. Overall, this Comment argues that the ATCA forces courts to reassess their assumptions about the distribution of power, in both domestic and international arenas, and come to a more balanced assessment of the proper role of U.S. courts in the enforcement of international human rights norms. Because individuals and non-state actors are increasingly subjects of private international law, and because national borders are now porous and diffuse, U.S. courts, at least in the short-term, should assert the rule of law in ATCA cases as a form of “soft power” in an increasingly interdependent, globalized world in which the exporting of capitalism has led to the dominance of corporate wealth and the supplanting of nation states by non-state actors seeking private gain.

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