The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute

Article — Volume 101, Issue 3

101 Va. L. Rev. 609
Download PDF

Federal common law causes of action—actions created neither by Congress nor by state law—have long generated debate among judges and scholars. In Erie Railroad Co. v. Tompkins, the Supreme Court famously rejected “federal general common law.”  Nonetheless, the Court has cautiously embraced several specific enclaves of federal common law over the ensuing decades.  The question of federal judicial power to recognize federal common law causes of action arises in a range of contexts in the field of federal courts. For instance, may federal courts recognize an implied cause of action for the violation of a federal statute that does not itself create a cause of action? Relatedly, may federal courts recognize an implied cause of action for the violation of the Constitution when neither the Constitution nor a federal statute specifically creates one? Although courts and scholars continue to debate these questions, they have not reached a consensus on how to resolve them.

Recently, the power of federal courts to recognize federal common law causes of action has emerged as a key question under the Alien Tort Statute (“ATS”).  Congress enacted the ATS in 1789 as part of the First Judiciary Act. The ATS grants federal courts subject matter juris-diction over claims by aliens for torts in violation of the law of nations, but creates no cause of action itself.  In the last decade, the Supreme Court has twice interpreted the ATS and, in the process, has suggested that, although the statute is purely jurisdictional, federal courts have limited power to recognize a small handful of federal common law causes of action when exercising this jurisdiction.

Over time, judges and scholars have reached different conclusions in different contexts about the power of federal courts to recognize federal common law. From the Founding through the nineteenth century, the Supreme Court did not recognize any “federal common law”—that is, “federal rules of decision whose content cannot be traced directly by traditional methods of interpretation to federal statutory or constitution-al commands.”  To be sure, in certain cases, exemplified by the Supreme Court’s decision in Swift v. Tyson, early federal courts applied general law—a transnational source of law that included the law merchant, the law maritime, and the law of state-state relations. General law, however, did not preempt contrary state law or create causes of action. Moreover, general law was not federal common law. Unlike modern federal common law, general law neither supported federal question jurisdiction nor preempted contrary state law. The Supreme Court stopped applying general law as such in 1938 when it held in Erie that “[t]here is no federal general common law.”  Nonetheless, following Erie, the Court recognized several distinct “enclaves” of federal common law. In recent decades, the Court has been reluctant to recognize new enclaves because of concerns that judicial creation of federal common law is in tension with Erie, and with principles of separation of powers and federalism more generally.

Against this background, the Supreme Court interpreted the ATS for the first time in 2004. In Sosa v. Alvarez-Machain, the Court concluded that “the ATS is a jurisdictional statute creating no new causes of action.”  Nonetheless, the Court believed that “[t]he jurisdictional grant is best read as having been enacted on the understanding that the com-mon law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.”  The Court rested this belief on the assumption that the First Congress would have understood “the ambient law of the era” to pro-vide the causes of action that federal courts would adjudicate in exercising their ATS jurisdiction.  In other words, the Court “assume[d] that the First Congress understood that the district courts would recognize private causes of action,” derived from ambient law, “for certain torts in violation of the law of nations.”  On the basis of this assumption, the Court suggested that federal courts today may “recognize private claims under federal common law” for a narrow range of international law violations.  Commentators have generally embraced Sosa’s vision of ambient law and federal judicial power at the Founding with little independent historical analysis or verification.

In fact, the claim that early federal courts relied on “the common law” in the abstract to supply causes of action in civil suits rests on a false historical premise. Ambient or general law neither supplied nor was understood by the Founders to supply the cause of action in civil cases (including ATS cases) within the jurisdiction of early federal courts. Rather, Congress enacted specific statutes that prescribed the civil causes of action available in federal courts, as well as related matters. Although the full import of these statutes is largely overlooked to-day, they provide important context for understanding the kind of judicial power that federal courts exercised within their limited subject matter jurisdiction. Members of the First Congress considered and debated many aspects of federal judicial power over civil disputes—including whether litigants would enjoy the right to a jury trial,  how expansively federal courts would exercise equity jurisdiction,  how expensive and otherwise inconvenient federal litigation would be,  and how federal courts would order executions on their judgments.  In addition to these questions, but integrally related to them, Congress considered and pro-vided the source of the causes of action available in federal court. The resolution of all these questions depended in large part on the forms of proceeding that federal courts generally would use in civil cases. Congress addressed these questions by enacting a series of early federal statutes that specified the forms and modes of proceeding that federal courts were to apply.

To understand these statutes, one must understand the status of the common law in the United States prior to their enactment. Before the Constitution was adopted, state courts generally relied on common law forms of proceeding to adjudicate cases before them. During British rule, the colonies had applied common law as British law. After independence, the individual states chose to adopt the common law as state law. Each of the original thirteen states took action to receive the com-mon law—including its forms and modes of proceeding—by statute, constitutional provision, or judicial decision. The resulting state law forms of proceeding defined the remedies that were available to plain-tiffs for particular wrongs, and how state courts would determine a plaintiff’s right to a particular remedy. In other words, the traditional forms of proceeding adopted by the states defined the causes of action available to plaintiffs and the procedures to be used for adjudicating them. Over time, individual states molded these forms of proceeding in response to local circumstances, resulting in variations among state causes of action.

Accordingly, when Congress exercised its power to create lower federal courts in 1789,  there was no single body of “common law” that applied throughout the United States. Congress made no attempt to fol-low the states’ lead by adopting its own version of the common law as a whole for the nation, in part because any such attempt would have exceeded enumerated federal powers as then understood. Nor did Congress adopt uniform forms of proceeding for use in federal court, apparently because it was unable (or unwilling) to do so.  Rather, in the Process Acts of 1789 and 1792, Congress instructed inferior federal courts adjudicating common law suits to borrow the forms and modes of proceeding then in use by the states in which they sat. In this legislation, Congress balanced the need to create an effective federal judiciary with a desire to heed anti-Federalist concerns about consolidated national power at the expense of the states.  Members of Congress argued that the interests of the people would be “more secure under the legal paths of their ancestors, under their modes of trial, and known methods of decision.”  Accordingly, the First Congress established a “species of continuity” with diverse state practices by adopting the forms of proceeding of each state as the governing forms of proceed-ing for federal courts located in that state.  In cases in equity and admiralty, the First Congress directed federal courts to use the traditional forms of proceeding that applied in such cases. In doing so, Congress did not leave federal courts free to derive the causes of action they would employ from “ambient law.” Rather, Congress specifically adopted several preexisting, well-developed bodies of law for use in federal court.

This original source of the cause of action in federal courts has been largely forgotten by today’s lawyers and judges, not only because it is no longer relevant to their work, but also because modern legal sensibilities no longer identify “process” as the source of a “cause of action.”  When Congress adopted the Process Acts of 1789 and 1792, however, legal and equitable forms of proceeding defined the specific causes of action available to litigants. In light of this background, the First Congress contemplated that federal courts would hear only those causes of action already available under existing legal and equitable forms of proceeding. At the time, lawyers, judges, and other public officials understood that these forms of proceeding—not ambient law—defined the causes of action available to litigants. Once established, this connection would have been sufficiently obvious to members of the First Congress and the judiciary that it warranted little, if any, discussion.

This background has important implications for interpreting the ATS. The Supreme Court has self-consciously sought to identify and implement the First Congress’s understanding of the ATS. The Court has proceeded, however, on the false premise that the First Congress assumed that federal courts would adopt causes of action in ATS cases by looking to “the ‘brooding omnipresence’ of the common law then thought discoverable by reason.”  The Process Acts demonstrate that the First Congress made no such assumption. Instead, the Process Acts instructed federal courts adjudicating any of the legal claims over which they had subject matter jurisdiction—including ATS claims—to apply the forms of proceedings used by the courts of the state in which they sat. Neither early congressional legislation nor early federal judicial practice supports the Supreme Court’s suggestion that courts today should employ novel—and artificially narrow—federal common law causes of action in ATS cases. To the contrary, long-standing historical practice suggests that state law may continue to define the causes of action available when federal courts exercise jurisdiction under the ATS—not under the now-defunct Process Acts, but under Erie and the Rules of Decision Act.

This Article will proceed as follows. Part I will describe how the Supreme Court has recently interpreted the ATS to authorize the creation of limited federal common law causes of action. The Court’s approach is based on the mistaken historical premise that the ambient law of the era—rather than the Process Acts—would have supplied the causes of action available to early federal courts exercising jurisdiction under the ATS.

Part II will describe how the Process Acts of 1789 and 1792 adopted state forms of proceeding in cases at law and traditional forms of proceeding in equity and admiralty as the causes of action available in federal court. The Process Acts marked a victory for opponents of expansive federal judicial power, especially insofar as the Acts required federal courts to follow state forms of proceeding in common law cases.

Part III will describe how early federal courts understood their authority to entertain legal and equitable causes of action. In a range of contexts across jurisdictional grants, federal courts adjudicated only those causes of action authorized by the Process Acts of 1789 and 1792, absent contrary instructions from Congress in other statutes.

Part IV will describe some of the implications of this history for the source of the cause of action in ATS cases. Although this Article will not attempt to work out all of the implications of the history it presents, this Part will use the ATS to illustrate how a proper understanding of the original source of the cause of action in federal court can both in-form and transform debates over federal judicial power.

Click on a link below to access the full text of this article. These are third-party content providers and may require a separate subscription for access.

  Volume 101 / Issue 3  

Contract’s Role in Relational Contract

By Scott Baker and Albert Choi
101 Va. L. Rev. 559

The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute

By Anthony J. Bellia Jr. and Bradford R. Clark
101 Va. L. Rev. 609

Reasonable Expectations of Anonymity

By Jeffrey M. Skopek
101 Va. L. Rev. 691

Exiled from Education: Plyler v. Doe’s Impact on the Constitutionality of Long-Term Suspensions and Expulsions

By Robyn K. Bitner
101 Va. L. Rev. 763