496 COLUMBIA LAW REVIEW [Vol. 107:457
and even U.S. states have in determining their own law.
The objection
seems to be mostly concerned about the possibility that states will ignore
or misinterpret international law.
221
220
Such misapplication of international law could happen in two ways.
A state rule could overenforce or underenforce an international norm,
but neither of these concerns is justified. Overenforcement is only a
problem insofar as it conflicts with specific federal legislation or executive
action.
In that event, traditional preemption analysis would direct a
federal court to follow the federal rule in step two of the Kimbell Foods
analysis. Similarly, given the role that state law itself plays in developing
international law,
222
underenforcement is only troubling if state law
would permit jus cogens violations to go unredressed. In the limited context
at issue here—what
source of law to choose for ATS
issues such as
aiding
and abetting liability—that
is an unlikely scenario.
223
On a related note, one possible objection to the use of state law as
the rule of decision for some ATS issues concerns the potential incentive
for forum shopping that it could create.
Attorneys for potential ATS
plaintiffs could sift through the applicable law of the states where the
defendant is subject to personal jurisdiction and file suit in the venue
with the most favorable law. Counsel for defendants, for their part,
would do everything possible to ensure cases were adjudicated in a defendant-friendly
forum.
Because of this forum shopping threat, a single federal
rule of decision might seem more appropriate.
224
Though initially compelling, this objection is probably overstated for
three reasons. First, some potential issues that can arise in ATS cases simply
have no federal rule of decision at all, and it seems unlikely that federal
courts will be willing to develop one.
Second, to the extent that
U.S. law is already more favorable than international law or foreign countries’
domestic laws, the incentive to forum shop already exists.
Using
225
220. See supra note 211 and accompanying text.
221. See, e.g., Born, supra note 80, at 53 (raising question of state interpretation of
international law).
222. This was the problem presented in American Insurance Ass’n v. Garamendi, 539
U.S. 396, 419–20 (2003) (finding state law touching on foreign affairs preempted because
it conflicted with executive agreement). For further discussion of Garamendi and federal
preemption of state law in the field of foreign relations, see infra notes 237–240 and
accompanying text.
223. See supra notes 203–204 and accompanying text.
224. See generally Kevin M. Clermont & Theodore Eisenberg, Exorcising the Evil of
Forum-Shopping, 80 Cornell L. Rev. 1507, 1507 (1995) (discussing incentives for forum
shopping that face corporations involved in litigation and conducting empirical study of
effects of forum shopping on litigation outcomes).
225. See supra Part I.C (listing some potential ATS issues that are ill-defined in
federal or international law). In particular, something like family law issues—which could
easily come before an ATS court, see Taveras v. Taveras, 397 F. Supp. 2d 908, 915 n.6 (S.D.
Ohio 2005) (acknowledging that allegations of child abuse would satisfy Sosa standard for
recognizing ATS claims)—or many tort claims are unlikely to have federal or international
rules of decision.
2007] ATS RULES OF DECISION 497
state law as a rule of decision merely recognizes that individual states are
among the actors that have an interest in regulating the conduct of corporations
subject to their jurisdiction.
Finally and perhaps most importantly, to the extent that the chief
mischief worked by forum shopping is unpredictability of result, the use
of state law may actually achieve greater predictability: Whereas state law
on most potential ATS issues is relatively well developed, international law
is not.
Permitting federal courts to jump into the fray and create new
rules is unlikely to help achieve a greater level of predictability. Counterintuitively,
the purposes of avoiding forum shopping in the first place
may
actually be better served through the use of state rules of decision.
While
the outcome may vary from one state to another, international actors
will know in advance the extent of their liability in each jurisdiction.
Corporations
and other actors in the United States have long been accustomed
to the diversity of laws that exist throughout the country, and indeed
may already be subject to different regulations of identical activities
conducted
in different parts of the country.
The additional predictability
offered by the use of state rules of decision is likely to offset the relatively
minor additional disuniformity that would result from the use of state
law.
226
Admittedly, under the approach advocated in this Note, different
rules of decision would arise across different states for different issues.
To the extent that uniformity is necessary, a federal court would still be
free to impose a uniform federal rule. But where uniformity is not necessary—where
instead the important question is whether some remedy is
being
provided at all—there
should be substantial room permitted for
states
to fashion their own rules of decision.
In the context of liability for state-incorporated actors, then, these
three factors—justified expectations, uniformity of result, and ease of determination
and application of law—are
at most neutral in the choice
between
often more vague international law and better known domestic
law.
Although application of state law comes at the price of some uniformity,
that sacrifice is greatly outweighed by the other two factors.
4. Basic Policy Underlying the Field of Law. — According to the Unocal
majority, the purpose of the ATS was to provide a remedy for otherwise
unredressable torts committed in violation of the law of nations.
227
Two
226. See supra note 55 and accompanying text.
227. See Doe I v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002). More generally,
the policy underlying ATS litigation seems to focus on providing remedies when foreign
remedies are inadequate. For example, despite the Restatement’s admonition that the law
of the place of injury will often be applied, see Restatement (Second) of Conflict of Laws
§ 145(2)(a) (1971), many courts simply pick and choose from many sources of law to
compose what seems to be a more fair result. See, e.g., Filartiga v. Pena-Irala, 577 F. Supp.
860, 864–67 (E.D.N.Y. 1984) (finding Paraguayan law inadequate to provide appropriate
remedy and thus looking to other sources of law to supplement it).
The Senate Report on the TVPA appears to have endorsed this view of the purpose of
the ATS. It said, “[s]ection 1350 has other important uses and should not be replaced.” S.
498 COLUMBIA LAW REVIEW [Vol. 107:457
distinct issues remain, however. First, as described above,
at least some
of the particular torts envisioned by the First Congress when it passed the
ATS were cognizable under state common law.
229
228
This consideration perhaps
provides an answer to the question that has been present since the
ATS
was rediscovered in the late 1970s:
Why did the First Congress
neglect to enact any causes of action to define violations of the law of
nations?
With the Rules of Decision Act in mind, the answer becomes
that it was simply unnecessary. Whatever causes of action were available
under state law would be the rules of decision under the new federal law.
So while the policy underlying the ATS, particularly as it has developed in
modern times, is concerned with providing a remedy for otherwise unactionable
international violations, the original policy was also concerned
with
providing a federal forum for certain state causes of action that already
existed.
230
231
Second, in determining whether to forge a new federal rule of decision
or to adopt a state rule of decision, the most important inquiry is
whether
there is a need for federal uniformity.
While international
relations is an area where federal uniformity is typically assumed to be
needed,
233
232
the standard for aiding and abetting liability for corporations
complicitous in human rights violations does not necessarily fall within
the scope of that assumption. The need for federal uniformity in international
relations is implicated most severely when different branches of
government
might make different pronouncements of policy and thus
Rep. No. 102-249, at 4 (1991). It then went on to discuss and approve of the Filartiga line
of cases. Id. at 4–5. But cf. Sarei v. Rio Tinto, PLC, 456 F.3d 1069, 1092–93 (9th Cir. 2006)
(viewing Senate’s admonition that ATS has other important uses as evidence that Congress
did not intend to impose exhaustion of remedies requirement on ATS when it passed
TVPA). The Sarei court’s view that the ATS does not contain an exhaustion of remedies
requirement suggests a broader view of the statutory purposes than to simply provide a
remedy when other remedies are inadequate.
228. See supra Part I.A (describing historical origins of ATS).
229. Others, such as piracy, were made cognizable in the federal courts more
specifically. See supra note 118 and accompanying text.
230. See Sosa v. Alvarez-Machain, 542 U.S. 692, 719 (2004) (assuming First Congress
did not pass ATS as simple jurisdictional placeholder).
231. This view of the ATS would make jurisdiction under it substantially similar to
diversity jurisdiction, see supra notes 181–186 and accompanying text, which would greatly
strengthen the argument that the RDA and Erie line of precedents apply of their own force
to ATS cases. But this approach appears to be foreclosed by the Sosa decision itself, with its
willingness to permit federal common law to develop under the ATS. See Sosa, 542 U.S. at
724–25 (finding that federal courts have limited common law authority to recognize new
ATS causes of action).
232. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979) (“[W]hen
there is little need for a nationally uniform body of law, state law may be incorporated as
the federal rule of decision.”).
233. See supra note 190 and accompanying text.
and even U.S. states have in determining their own law.
The objection
seems to be mostly concerned about the possibility that states will ignore
or misinterpret international law.
221
220
Such misapplication of international law could happen in two ways.
A state rule could overenforce or underenforce an international norm,
but neither of these concerns is justified. Overenforcement is only a
problem insofar as it conflicts with specific federal legislation or executive
action.
In that event, traditional preemption analysis would direct a
federal court to follow the federal rule in step two of the Kimbell Foods
analysis. Similarly, given the role that state law itself plays in developing
international law,
222
underenforcement is only troubling if state law
would permit jus cogens violations to go unredressed. In the limited context
at issue here—what
source of law to choose for ATS
issues such as
aiding
and abetting liability—that
is an unlikely scenario.
223
On a related note, one possible objection to the use of state law as
the rule of decision for some ATS issues concerns the potential incentive
for forum shopping that it could create.
Attorneys for potential ATS
plaintiffs could sift through the applicable law of the states where the
defendant is subject to personal jurisdiction and file suit in the venue
with the most favorable law. Counsel for defendants, for their part,
would do everything possible to ensure cases were adjudicated in a defendant-friendly
forum.
Because of this forum shopping threat, a single federal
rule of decision might seem more appropriate.
224
Though initially compelling, this objection is probably overstated for
three reasons. First, some potential issues that can arise in ATS cases simply
have no federal rule of decision at all, and it seems unlikely that federal
courts will be willing to develop one.
Second, to the extent that
U.S. law is already more favorable than international law or foreign countries’
domestic laws, the incentive to forum shop already exists.
Using
225
220. See supra note 211 and accompanying text.
221. See, e.g., Born, supra note 80, at 53 (raising question of state interpretation of
international law).
222. This was the problem presented in American Insurance Ass’n v. Garamendi, 539
U.S. 396, 419–20 (2003) (finding state law touching on foreign affairs preempted because
it conflicted with executive agreement). For further discussion of Garamendi and federal
preemption of state law in the field of foreign relations, see infra notes 237–240 and
accompanying text.
223. See supra notes 203–204 and accompanying text.
224. See generally Kevin M. Clermont & Theodore Eisenberg, Exorcising the Evil of
Forum-Shopping, 80 Cornell L. Rev. 1507, 1507 (1995) (discussing incentives for forum
shopping that face corporations involved in litigation and conducting empirical study of
effects of forum shopping on litigation outcomes).
225. See supra Part I.C (listing some potential ATS issues that are ill-defined in
federal or international law). In particular, something like family law issues—which could
easily come before an ATS court, see Taveras v. Taveras, 397 F. Supp. 2d 908, 915 n.6 (S.D.
Ohio 2005) (acknowledging that allegations of child abuse would satisfy Sosa standard for
recognizing ATS claims)—or many tort claims are unlikely to have federal or international
rules of decision.
2007] ATS RULES OF DECISION 497
state law as a rule of decision merely recognizes that individual states are
among the actors that have an interest in regulating the conduct of corporations
subject to their jurisdiction.
Finally and perhaps most importantly, to the extent that the chief
mischief worked by forum shopping is unpredictability of result, the use
of state law may actually achieve greater predictability: Whereas state law
on most potential ATS issues is relatively well developed, international law
is not.
Permitting federal courts to jump into the fray and create new
rules is unlikely to help achieve a greater level of predictability. Counterintuitively,
the purposes of avoiding forum shopping in the first place
may
actually be better served through the use of state rules of decision.
While
the outcome may vary from one state to another, international actors
will know in advance the extent of their liability in each jurisdiction.
Corporations
and other actors in the United States have long been accustomed
to the diversity of laws that exist throughout the country, and indeed
may already be subject to different regulations of identical activities
conducted
in different parts of the country.
The additional predictability
offered by the use of state rules of decision is likely to offset the relatively
minor additional disuniformity that would result from the use of state
law.
226
Admittedly, under the approach advocated in this Note, different
rules of decision would arise across different states for different issues.
To the extent that uniformity is necessary, a federal court would still be
free to impose a uniform federal rule. But where uniformity is not necessary—where
instead the important question is whether some remedy is
being
provided at all—there
should be substantial room permitted for
states
to fashion their own rules of decision.
In the context of liability for state-incorporated actors, then, these
three factors—justified expectations, uniformity of result, and ease of determination
and application of law—are
at most neutral in the choice
between
often more vague international law and better known domestic
law.
Although application of state law comes at the price of some uniformity,
that sacrifice is greatly outweighed by the other two factors.
4. Basic Policy Underlying the Field of Law. — According to the Unocal
majority, the purpose of the ATS was to provide a remedy for otherwise
unredressable torts committed in violation of the law of nations.
227
Two
226. See supra note 55 and accompanying text.
227. See Doe I v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002). More generally,
the policy underlying ATS litigation seems to focus on providing remedies when foreign
remedies are inadequate. For example, despite the Restatement’s admonition that the law
of the place of injury will often be applied, see Restatement (Second) of Conflict of Laws
§ 145(2)(a) (1971), many courts simply pick and choose from many sources of law to
compose what seems to be a more fair result. See, e.g., Filartiga v. Pena-Irala, 577 F. Supp.
860, 864–67 (E.D.N.Y. 1984) (finding Paraguayan law inadequate to provide appropriate
remedy and thus looking to other sources of law to supplement it).
The Senate Report on the TVPA appears to have endorsed this view of the purpose of
the ATS. It said, “[s]ection 1350 has other important uses and should not be replaced.” S.
498 COLUMBIA LAW REVIEW [Vol. 107:457
distinct issues remain, however. First, as described above,
at least some
of the particular torts envisioned by the First Congress when it passed the
ATS were cognizable under state common law.
229
228
This consideration perhaps
provides an answer to the question that has been present since the
ATS
was rediscovered in the late 1970s:
Why did the First Congress
neglect to enact any causes of action to define violations of the law of
nations?
With the Rules of Decision Act in mind, the answer becomes
that it was simply unnecessary. Whatever causes of action were available
under state law would be the rules of decision under the new federal law.
So while the policy underlying the ATS, particularly as it has developed in
modern times, is concerned with providing a remedy for otherwise unactionable
international violations, the original policy was also concerned
with
providing a federal forum for certain state causes of action that already
existed.
230
231
Second, in determining whether to forge a new federal rule of decision
or to adopt a state rule of decision, the most important inquiry is
whether
there is a need for federal uniformity.
While international
relations is an area where federal uniformity is typically assumed to be
needed,
233
232
the standard for aiding and abetting liability for corporations
complicitous in human rights violations does not necessarily fall within
the scope of that assumption. The need for federal uniformity in international
relations is implicated most severely when different branches of
government
might make different pronouncements of policy and thus
Rep. No. 102-249, at 4 (1991). It then went on to discuss and approve of the Filartiga line
of cases. Id. at 4–5. But cf. Sarei v. Rio Tinto, PLC, 456 F.3d 1069, 1092–93 (9th Cir. 2006)
(viewing Senate’s admonition that ATS has other important uses as evidence that Congress
did not intend to impose exhaustion of remedies requirement on ATS when it passed
TVPA). The Sarei court’s view that the ATS does not contain an exhaustion of remedies
requirement suggests a broader view of the statutory purposes than to simply provide a
remedy when other remedies are inadequate.
228. See supra Part I.A (describing historical origins of ATS).
229. Others, such as piracy, were made cognizable in the federal courts more
specifically. See supra note 118 and accompanying text.
230. See Sosa v. Alvarez-Machain, 542 U.S. 692, 719 (2004) (assuming First Congress
did not pass ATS as simple jurisdictional placeholder).
231. This view of the ATS would make jurisdiction under it substantially similar to
diversity jurisdiction, see supra notes 181–186 and accompanying text, which would greatly
strengthen the argument that the RDA and Erie line of precedents apply of their own force
to ATS cases. But this approach appears to be foreclosed by the Sosa decision itself, with its
willingness to permit federal common law to develop under the ATS. See Sosa, 542 U.S. at
724–25 (finding that federal courts have limited common law authority to recognize new
ATS causes of action).
232. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979) (“[W]hen
there is little need for a nationally uniform body of law, state law may be incorporated as
the federal rule of decision.”).
233. See supra note 190 and accompanying text.
2007] ATS RULES OF DECISION 499
embarrass the government.
In dealing with liability for corporations
that assisted gross human rights violations abroad, such a risk is less likely
to arise because the federal government is unlikely to condone the practices
being challenged.
235
234
Combined with the need to respect state sovereignty
when those state rules are already compliant with international
norms,
there is little need to insist upon a uniform federal rule in determining
the standard for civil aiding and abetting liability, particularly
since
each state already applies different rules across state jurisdictions.
Admittedly,
this approach reduces national uniformity at some level of
specificity.
But because the relevant question is which rule of decision a
federal court ought to use, not whether state law applies of its own force,
any particular situation requiring federal uniformity could be handled on
a case-by-case basis.
236
At its heart, each of these considerations is basically asking whether
the state rule of decision is so at odds with the federal rule of decision
that the state rule cannot be applied—essentially a preemption analysis.
The Unocal court assumed sub silentio that the federal interest would always
be stronger—that
is, it assumed the field of international relations
was
preempted by federal policy and by the role of international law as
federal
common law.
But in Garamendi, the Supreme Court indicated
that it had not conclusively decided whether all state law touching upon
foreign affairs was invalid through field preemption or if conflict preemption
was required.
238
237
It went further to suggest that in areas of traditional
234. See Baker v. Carr, 369 U.S. 186, 211–12 (1962) (noting that while not all foreign
relations cases are beyond judicial cognizance, foreign affairs often require federal
branches of government to speak with one voice).
235. Of course, situations like that presented in American Insurance Ass’n v. Garamendi
might arise where the executive has negotiated an agreement for claims resulting from
large scale humanitarian disasters. See 539 U.S. 396, 419–20 (2003) (finding state law
touching on foreign affairs preempted because it conflicted with executive agreement
regarding corporate behavior during Holocaust). But events leading to ATS cases against
corporations typically do not resemble the Holocaust in sheer size, scope of the atrocity
committed, or foreign policy ramifications, and are less likely to be the subject of executive
agreements. Use of state law in ATS cases similarly is unlikely to run afoul of Crosby v.
National Foreign Trade Council. There, a state law effectively establishing a state boycott of
Burma was held to be preempted by federal legislation delegating to the executive branch
the power to impose such sanctions. See 530 U.S. 363, 373–74 (2000). Application of the
state civil aiding and abetting standard, in contrast, would apply only to the behavior of
corporations that would be illegal in the forum state anyway.
236. See supra Part III.B.1.
237. See Doe I v. Unocal Corp., 395 F.3d 932, 948 n.23 (2002) (declining to evaluate
application of state law as possible rule of decision because international law is federal
common law). This analysis ignores entirely the second step of Kimbell Foods: Even if
international law is federal common law, the court still needs to identify an appropriate
rule of decision to define it. See supra Part III.A.
238. See Garamendi, 539 U.S. at 419–20. Field preemption occurs when congressional
action “occupies the field” of an area of law and prevents state action on similar topics. See
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001) (“State action [in a particular
area] may be foreclosed . . . by implication from the depth and breadth of a congressional
scheme that occupies the legislative field . . . .” (citations omitted)). Conflict preemption
500 COLUMBIA LAW REVIEW [Vol. 107:457
state competence, the argument for direct conflict preemption, where
the federal rule is used only if there is a direct conflict, is strongest.
Many ATS issues, including corporate aiding and abetting liability, fit this
Garamendi category nicely: States traditionally can regulate the conduct
of corporations within their borders, and there is no conflict between the
state rule and federal policy. For civil aiding and abetting liability, the
preemption analysis that is at the heart of the Restatement factors favors
application of state law.
240
C. When State Law Should Be Used: Applying Kimbell Foods to the ATS
State law thus appears to be an appropriate choice to flesh out the
contours of civil aiding and abetting liability in ATS cases. This will not
always be the case for all ATS issues, however, and the ultimate determination
will rest on the two-step Kimbell
Foods
analysis.
In ATS cases, the
first step, finding competence for federal courts to decide on a federal
rule of decision, is easily satisfied.
The most important part of the
query is thus in the second step. This Part summarizes the questions a
court should ask in determining which body of law should be used.
241
International law, giving deference to a forum’s particular embodiment
of international principles as it does, should only play an informative
role in this second step, providing a minimum standard under which
the
appropriate rule of decision cannot descend.
A court faced with an
issue under the ATS should thus presume, absent compelling evidence to
the contrary, that the forum rule is compliant with jus cogens norms. Put
differently, this means that customary international law only applies as
federal common law insofar as it conflicts directly with—and thus
preempts—conflicting state law.
Assuming that state law does not violate jus cogens norms, the court
should then proceed by asking if federal uniformity is needed on the
particular issue. In some cases, such as determining the appropriate con-
occurs when state law directly conflicts with congressional action. See id. (“State action
may be foreclosed . . . by implication because of a conflict with a congressional
enactment . . . .”). See generally Caleb Nelson, Preemption, 86 Va. L. Rev. 225 (2000)
(summarizing modern preemption doctrines).
239. Garamendi, 539 U.S. at 419 n.11 (“Where . . . a state has acted within . . . its
‘traditional competence,’ but in a way that affects foreign relations, it might make good
sense to require a conflict . . . .” (citations omitted)).
240. The two-step theory of Adra v. Clift, 195 F. Supp. 857, 862–66 (D. Md. 1961), may
also be appropriate here. See supra Part I.C.2. In Tel-Oren v. Libyan Arab Republic, Judge
Edwards noted that such an approach might be appropriate for “torts committed by
American citizens abroad, where redress in American courts might preclude international
repercussions.” 726 F.2d 774, 788 (D.C. Cir. 1984) (Edwards, J., concurring). Though
perhaps not a citizen, a corporation is still a legal “person,” and its actions abroad
undoubtedly have international repercussions.
241. This assumes that the claim is not actually based on diversity jurisdiction. See
supra notes 181–186 and accompanying text.
2392007] ATS RULES OF DECISION 501
tours of the statute of limitations
for the ATS or when executive agreements
dictate so,
243
242
national uniformity might be required or needed. In
the vast majority of cases, however, strict uniformity will not be necessary,
and the federal court can simply adopt the state rule. The price that will
be paid for applying state laws will be interstate variation. But that tradeoff
will purchase several advantages:
an understandable, well-defined,
democratically sufficient body of law, clearly applicable to the issues at
hand, applied in a consistent manner to activities originating or centered
in the forum in a way that avoids the problems of Central Bank of
Denver.
244
CONCLUSION
In sum, state law should be used as the appropriate rule of federal
decision for issues in ATS cases whenever the federal court is faced with
an issue for which state law is better developed than the alternatives.
The approach advocated in this Note is arguably what several courts have
already been doing, though some are apparently unwilling to admit it.
For allegations of corporate aiding and abetting of violations of the law of
nations under the ATS, the case will usually amount to nothing more
than an out-of-state plaintiff suing the corporation on its home turf for
behaving badly outside of the jurisdiction. If foreign law provided an adequate
basis for recovery, not only would the plaintiff have little need to
sue
in federal court to begin with, but a much stronger argument could
be
made to apply the law of the foreign state.
Since most ATS cases do
not present that problem, though, a substitute rule of decision is needed.
State law will often, though admittedly not always, provide a ready, offthe-shelf
rule of decision.
The two-step approach used in Kimbell Foods—
asking first if federal common law can be fashioned and second whether
state law can furnish the appropriate rule—should be used in situations
where states have a viable interest in applying their rule and where no
other rule of decision is available. In the specific context of corporate
242. See, e.g., Papa v. United States, 281 F.3d 1004, 1012–13 (9th Cir. 2002) (deciding
statute of limitation issue under ATS by looking to Torture Victim Protection Act of 1991,
Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note (2000))); see
also supra Part I.C.1.
243. See Garamendi, 539 U.S. at 419–23 (finding executive order preempts state law).
244. See supra Part II.B (discussing how Central Bank’s prohibition on implied civil
aiding and abetting liability interacts with ATS cases).
245. In this respect, the ATS would become similar to the Federal Tort Claims Act, 28
U.S.C. § 1346, which directs courts to use state rules of decision in tort suits against the
federal government. Id. § 1346(b)(1). The purpose for such a rule is to comply with the
command of both the RDA and Erie, restricting the creation of federal common law when
it does not need to be created.
245
246
246. See supra notes 205–208 and accompanying text (describing Unocal court’s
reformulation of international law).
502 COLUMBIA LAW REVIEW [Vol. 107:457
aiding and abetting of human rights violations, guilty corporations
should be held liable to their victims. State law is perfectly capable of
ensuring that result.
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