482 COLUMBIA LAW REVIEW [Vol. 107:457
and abetting liability for international law violations is unlikely to be clear
enough or universally condemned enough to satisfy the Sosa standard.
Significant questions remain about how to define which corporate officers’
knowledge should be adequate to satisfy the mens rea standard,
what
level of control is adequate to pierce the veil between an international
subsidiary and its domestic parent corporation, and what types of
interactions
between corporations and foreign governments are permissible.
The Court in Sosa seemed to be looking for very clear international
law violations, admittedly not limited to Blackstone’s trilogy but on
the
same order of clarity and condemnation.
Selling poisonous gas to a
genocidal regime, knowing the purpose of the purchase, would qualify.
143
But less dramatic international law violations might not.
However, there is something of an apparent contradiction in this: If
144
Sosa requires ATS causes of action to be universally condemned and well
defined, and if international precedent clearly establishes that corporate
aiding and abetting liability can exist in some situations, why would that
not be sufficient to satisfy Sosa? Part of the answer lies in the fact that
Sosa was dealing with implied causes of action under the ATS. The general
trend in federal jurisprudence has been away from recognizing implied
rights of action,
145
and Sosa follows that trend.
146
Additionally, interna-
143. See, e.g., Corrie, 403 F. Supp. 2d at 1027 (holding that sale of construction
equipment, later allegedly used to violate international law, does not constitute aiding and
abetting).
144. See In re Tesch & Others (Zyklon B Case), 13 Ann. Dig. 250, 250–53 (British
Military Ct. 1946) (reporting that two German industrialists, whose firm provided gas for
Nazi death chambers, were sentenced to death after being found guilty of international law
violations as well as for being accessories to murder).
145. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 311 (2001) (Stevens, J.,
dissenting) (noting majority’s skeptical view of Court’s implied right of action
jurisprudence). Note, also, that Central Bank is itself an implied right of action case.
Additionally, Casto notes the constitutional difficulties of following implied right of action
analysis for the ATS, chiefly motivated by separation of powers concerns in the field of
foreign affairs. See Casto, supra note 4, at 482; see also Adamu v. Pfizer, Inc., 399 F. Supp.
2d 495, 501 (S.D.N.Y. 2005) (noting difficulty of finding cause of action because of implied
cause of action precedent).
146. The connection between Central Bank, the ATS, and implied causes of action was
noted by a federal district court in California adjudicating a TVPA claim. In Mujica v.
Occidental Petroleum Corp., the court argued that Central Bank did not apply to claims under
the TVPA because such claims are not implied causes of action. See 381 F. Supp. 2d 1164,
1172–74 (C.D. Cal. 2005). To bolster support for this argument, the court asserted that
claims under the ATS, the most similar federal statute to the TVPA, also support aiding
and abetting liability, see id. at 1173–74 (citing Doe I v. Unocal Corp., 395 F.3d 932, 947
n.20 (9th Cir. 2002)), an approach that seems to ignore the implications of Central Bank on
the ATS itself. It acknowledged that Sosa might have circumscribed the availability of
aiding and abetting liability under the ATS but viewed Attorney General Bradford’s 1795
opinion letter as clearly providing for ATS aiding and abetting liability. See id. at 1173 n.6;
see also Breach of Neutrality, 1 Op. Att’y Gen. 57, 59 (1795) (“[A]ll citizens of the United
States . . . who should render themselves liable to punishment under the laws of nations, by
committing, aiding, or abetting hostilities . . . would not receive the protection of the
United States . . . .”).2007] ATS RULES OF DECISION 483
tional precedent itself typically follows the principle set out in Central
Bank: The Nuremberg statute, the I.C.T.Y., the I.C.T.R., and the Rome
Statute all contain specific language permitting aiding and abetting liability.
All of this suggests that a court should be hesitant to find aiding
and abetting liability in many types of ATS cases under federal law.
147
One potential avenue around this problem would be to use other
bodies of federal common law, such as liability for “agency, joint venture,
or reckless disregard,” as advocated by the concurrence in Unocal.
The
advantage to using these bodies of law, as pointed out by the concurrence,
lies in their well-developed character.
This approach has been
criticized, however, for its potential to create strict liability for corporate
actors.
150
149
That is, both agency and joint venture liability could create
liability even absent knowledge on the part of the corporation that their
coventurers or agents were committing violations of international law.
In turn, liability for reckless disregard, while incorporating some element
of knowledge, only goes part of the way to showing that the corporation
had the requisite mens rea and could still result in some level of strict
liability.
152
Failing to meet accepted notions of mens rea in this way,
148
151
147. See supra notes 119–125 and accompanying text. The First Congress’s piracy
statute, by explicitly permitting criminal aiding and abetting liability, also would have
satisfied Central Bank if it had been a civil statute. See Act of Apr. 30, 1790, ch. 9, § 10, 1
Stat. 112, 114; see also supra note 118 and accompanying text (noting liability for aiding
and abetting pirates). The counterargument, however, would follow these lines: The ATS
simply directs federal courts to look to international precedent to determine if a violation
of the law of nations has occurred. In making that determination, a federal court would
look to things like the Rome Statute, the Nuremberg tribunals, and the I.C.T.Y. and
I.C.T.R. statutes. Seeing that those provide for complicity liability, the federal court could
conclude that international law sufficiently incorporates complicity liability to satisfy the
demands of Sosa and Central Bank. What this argument ignores, however, is that each of
the precedents cited above, with the exception of the Rome Statute, only applies to
particular occurrences of state-sponsored mass atrocity, and each one explicitly lists
complicity liability. The only one generally applicable, the Rome Statute, has not been
embraced by the United States. The Nuremberg and I.C.T.Y./I.C.T.R. precedents
admittedly establish the principle that, for genocide, complicity liability is possible under
international law. But most ATS cases will not involve allegations of genocide. This in turn
may suggest that the real question at issue in most ATS cases is whether the challenged
activities are condemned under international law with the same reprehension that
genocide is. That claim is much more difficult to affirm than the condemnation against
genocide, especially when the liability is an additional step removed as with aiding and
abetting. Because of the relatively restrictive nature of Sosa, efforts to force a court to rule
on the issue of international condemnation are likely to result in the dismissal of many of
the types of cases currently brought under the ATS.
148. See Unocal, 395 F.3d at 963 (Reinhardt, J., concurring) (advocating use of these
theories of liability instead of international aiding and abetting theories to permit case
against Unocal to proceed).
149. See id. at 967 (noting “extensive precedent” that exists to apply federal common
law standards of third party liability).
150. See Diskin, supra note 2, at 831 (noting that joint venture, agency, and reckless
disregard, as torts principles, “encompass strict liability”).
151. See id.
152. See id.
484 COLUMBIA LAW REVIEW [Vol. 107:457
these federal common law theories do not quite fit the needs of many
ATS cases.
In summary, while obstacles to applying aiding and abetting liability
exist in both domestic and international law, those in domestic law appear
to be more substantial than those in international law because of the
Supreme
Court’s decision in Central
Bank.
Although there is an apparent
contradiction between this conclusion and Sosa’s requirement of universal
condemnation and clear definition, it is in line with the current reluctance
among American courts to imply causes of action.
Additionally, an
attempt to solve this problem by using other bodies of federal common
law brings its own unique problems.
C. State Corporate Complicity Doctrine
Finally, state law could be chosen by ATS courts considering the cor-
porate complicity issue. While the doctrine of corporate complicity at the
state level will vary by jurisdiction, general principles can be ascertained.
The most appropriate civil action counterpart for aiding and abetting liability,
a criminal law concept, is section 876 of the Restatement (Second)
of
Torts, Persons Acting in Concert.
According to the Restatement, a
party is liable for harm resulting from a tort committed by another if the
party: (a) acts in concert or according to a common design with the
other tortfeasor; (b) knows the other tortfeasor is committing a breach of
duty and gives “substantial assistance or encouragement” to breach the
duty; or (c) breaches an independent duty to the victim and gives substantial
assistance or encouragement to the other tortfeasor to achieve a
tortious
result.
154
153
Comment (d) elaborates on the factors to be considered
by a court in deciding if the conduct reaches the level at which liability
is appropriate:
Courts should consider “the nature of the act encouraged,
the amount of assistance given by the defendant, his presence
or
absence at the time of the tort, his relation to the other and his state of
mind.”
155
The use of this standard to determine civil complicity liability in most
tort cases is unexceptionable and spans across jurisdictions.
Indeed,
the majority in Unocal cited to section 876 while arguing that the distinc-
156
153. Restatement (Second) of Torts § 876 (1979); see also K & S P’ship v. Cont’l
Bank, N.A., 952 F.2d 971, 980 (8th Cir. 1991) (“[L]iability for civil conspiracy is in
substance the same thing as aiding and abetting liability.”); Diskin, supra note 2, at 832–36
(advocating use of section 876 as federal common law standard for aiding and abetting
liability in ATS cases).
154. Restatement (Second) of Torts § 876(a)–(c).
155. Id. § 876 cmt. d.
156. See, e.g., Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1118 (C.D.
Cal. 2003) (citing to section 876 as part of California law); Smith ex rel. Estates of Boston
Chicken, Inc. v. Arthur Andersen L.L.P., 175 F. Supp. 2d 1180, 1209 (D. Ariz. 2001)
(observing that Colorado follows section 876(b)); Beneficial Commercial Corp. v. Murray
Glick Datsun, Inc., 601 F. Supp. 770, 772–73 (S.D.N.Y. 1985) (applying section 876 as New
York law); Sindell v. Abbott Labs., 607 P.2d 924, 932 (Cal. 1980) (using Restatement of
2007] ATS RULES OF DECISION 485
tion between domestic civil aiding and abetting liability and international
standards for aiding and abetting liability was not substantially different.
State civil aiding and abetting law does differ from other sources
of law in three important respects, however. First, unlike federal law, no
explicit statutory authorization is needed for a state court to apply the
principles of section 876 to cases before it.
157
State law thus avoids the
problems raised by Central Bank of Denver. Second, a large body of cases
interpreting this body of law has already been decided. Application of a
particular state’s interpretation of section 876 would thus overcome the
Unocal concurrence’s objection to the use of vague international standards.
Finally, application of state law does not suffer from the same
“democratic deficit” that plagues international law.
158
159
III. CHOICE OF LAW PRINCIPLES IN ATS AIDING AND ABETTING CASES
Having examined the background of the ATS and the possible bodies
of law that could govern civil aiding and abetting liability as an example
of an issue arising in ATS
cases in Parts I and II, this Note in Part III
evaluates
the principles a federal court should use to choose between the
three
available bodies of law.
In general, federal statutory law and federal
case law, as well as general choice of law principles, tilt in favor of choosing
state law as the relevant rule of decision for the aiding and abetting
question,
though this will not always be the case for all ATS
issues.
Part
III.A begins by analyzing whether federal courts are competent to choose
between the rules of decision in such fields, thus creating “federal common
law.”
Concluding that it is within the power of federal courts to
fashion a federal common law rule in ATS corporate complicity cases,
Part III.B looks to traditional choice of law principles to determine which
source of law should be chosen. Part III.C discusses the advantages of
choosing state law over other alternatives.
Torts § 876 (1939), which is substantially similar to Restatement (Second) of Torts § 876,
as California law).
157. See Doe I v. Unocal Corp., 395 F.3d 932, 951 (9th Cir. 2002). It concluded that
the chief difference between the international standard, as set forth by decisions of the
I.C.T.R. and I.C.T.Y., and the standard in section 876 was that the international standard,
in addition to providing liability for substantial assistance and encouragement, also
provided liability for providing moral support to the tortfeasor. See id.; see also infra notes
205–208 and accompanying text (describing how Unocal court reconciled this difference).
158. Diskin argues that section 876 should be applied to ATS cases but for different
reasons than those argued in this Note. See Diskin, supra note 2, at 834–36 (“The
principles of aiding and abetting, as supplied by the U.S. domestic law in 1789, comport
well with the standard set forth in section 876 of the Restatement.”).
159. Cf. Unocal, 395 F.3d at 967–68 (Reinhardt, J., concurring) (noting lack of
precedent interpreting international aiding and abetting standard as recently promulgated
by I.C.T.Y. and I.C.T.R.); Diskin, supra note 2, at 836 (“Application of section 876 also has
the benefit of avoiding the troublesome application of international tribunal precedents to
a domestic statute . . . .”).
486 COLUMBIA LAW REVIEW [Vol. 107:457
A. Federal Law and the Rules of Decision Act
The Rules of Decision Act (RDA) requires that “[t]he laws of the
several states, except where the Constitution or treaties of the United
States or Acts of Congress otherwise require or provide, shall be regarded
as rules of decision in civil actions in the courts of the United States, in
cases where they apply.”
The interpretation of this statute in Swift v.
Tyson
161
160
led to the Court’s famous flip-flop in Erie Railroad Co. v.
Tompkins, with the well-known assertion that “[t]here is no federal general
common law.”
Despite this pronouncement, federal courts continue
to make legitimate common law in some areas.
162
The most important
use of federal common law, as a general matter, is to fill the
“interstices”
of federal statutory law, a situation that often arises because
of
the national government’s theoretically limited powers and federal
character.
164
163
To determine the relevant rule of decision in cases before federal
courts, the Supreme Court essentially has directed that the well-known
Kimbell Foods two-step inquiry should be used.
First, the court should
determine if federal law should govern.
166
165
Put differently, this step asks
whether the Rules of Decision Act applies to the case at bar, because, if it
does, the state rule must be used. If the RDA does not apply, then the
second step is to determine which rule should be adopted as the federal
rule.
In other words, this step asks whether, despite clearly being in an
area of federal competence, state law should be applied anyway as the
167
160. 28 U.S.C. § 1652 (2000). While the statute naturally has its strongest application
in diversity jurisdiction cases, nothing in its text necessarily limits its application to such
cases. See, e.g., Note, Clearfield: Clouded Field of Federal Common Law, 53 Colum. L.
Rev. 991, 1002–06 (1953) (criticizing Supreme Court’s decision in Clearfield Trust Co. v.
United States, 318 U.S. 363 (1943), to apply federal instead of state law because it limits
application of RDA to diversity cases).
161. 41 U.S. (16 Pet.) 1, 18–19 (1842) (interpreting precursor to RDA as only
applying to state statutory law).
162. 304 U.S. 64, 77–78 (1938) (overruling Swift to include state common law in
scope of RDA).
163. See generally Richard H. Fallon, Jr. et al., Hart and Wechsler’s The Federal
Courts and the Federal System 696–98 (5th ed. 2003) (listing areas such as admiralty and
international relations as places where federal common law is still frequently made).
164. See, e.g., United States v. Kimbell Foods, Inc., 440 U.S. 715, 727 (1979)
(directing “federal courts to fill the interstices of federal legislation ‘according to their own
standards’” when Congress has not spoken in federal statutory schemes (quoting Clearfield
Trust, 318 U.S. at 367)).
165. See id. at 726–27 (determining first if federal rule should apply to case at bar
before turning to question of how to define federal rule).
166. See id. at 727 (“Federal law therefore controls . . . . The more difficult task . . . is
giving content to this federal rule.”).
167. See id. at 728 (“Whether to adopt state law or to fashion a nationwide federal
rule is a matter of judicial policy ‘dependent upon a variety of considerations always
relevant to the nature of the specific governmental interests and to the effects upon them
of applying state law.’” (quoting United States v. Standard Oil Co., 332 U.S. 301, 310
(1947))).2007] ATS RULES OF DECISION 487
appropriate rule of federal law. Whether to fashion a uniform federal
rule, applicable in every similar case in all federal courts, or to permit the
state rule to be used as the rule of federal common law depends primarily
upon the federal interest implicated in the case.
The approach used
in Kimbell Foods has been generally followed in the intervening years,
168
though it appears that the inquiry has been collapsed into a single question
of whether state law has been preempted and therefore displaced.
Thus, over the years the inquiry has ripened into a general presumption
that state law should apply unless it has been preempted.
171
In ATS cases, nearly all courts that have considered the question
have concluded that a federal rule of decision should apply to issues without
a clear rule of decision,
and a few have looked to state law to determine
the content of that federal rule.
172
At least two different justifications
exist for permitting federal courts to fashion common law in ATS
cases,
thus satisfying the first step in the Kimbell
Foods
inquiry.
The first,
and perhaps stronger, justification is that the ATS is a constitutionally
173
168. See id.; see also Paul J. Mishkin, The Variousness of “Federal Law”: Competence
and Discretion in the Choice of National and State Rules for Decision, 105 U. Pa. L. Rev.
797, 805 (1957) (describing two-step process and need for uniformity as one significant
factor to consider in deciding whether to forge new federal law or adopt state law).
169. See, e.g., Atherton v. FDIC, 519 U.S. 213, 217–20 (1997) (using two-step
approach); O’Melveny & Myers v. FDIC, 512 U.S. 79, 83–86 (1994) (same).
170. See, e.g., Boyle v. United Techs. Corp., 487 U.S. 500, 507 n.3 (1988)
(acknowledging that question of which rule of decision to apply can be formulated in
Kimbell Foods two-step approach or, as Court did in this case, in one step asking whether
state law has been displaced, concluding that it probably never makes a difference which
approach is used).
171. See, e.g., Semtek Int’l Corp. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001)
(listing cases that adopt state rule of decision as federal rule); cf. Note, supra note 160, at
1002–06 (suggesting that creation of federal common law in many cases will reduce RDA
to apply only in diversity cases).
172. See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105 n.12 (2d Cir.
2000) (describing approaches various federal courts have used); Corrie v. Caterpillar, Inc.,
403 F. Supp. 2d 1019, 1027 (W.D. Wash. 2005) (using federal common law approach);
Xuncax v. Gramajo, 886 F. Supp. 162, 179–80 (D. Mass. 1995) (using international law as
federal common law). See generally Stephens & Ratner, supra note 90, at 119 (noting
federal common law is developing on ATS choice of law issues).
173. See, e.g., In re Estate of Ferdinand E. Marcos Human Rights Litig., 978 F.2d 493,
503 (9th Cir. 1992) (approving of district court’s use of municipal law to determine
outcome of ATS case, which under traditional conflict of law principles applied law of
place of injury); Adra v. Clift, 195 F. Supp. 857, 866 (D. Md. 1961) (applying state law but
declining to state explicitly whether doing so constituted creation of new federal common
law or whether state law applied of its own force by virtue of RDA). Similarly, even the
Unocal majority was effectively using state law as the federal common law rule of decision,
though it did so in a way that purported to be bound by international law. See Doe I v.
Unocal Corp., 395 F.3d 932, 949 & n.25 (9th Cir. 2002) (adopting international law as rule
of decision in this case but acknowledging that on different facts that might be presented
in other cases it might adopt different rule); see also infra notes 205–208 and
accompanying text (discussing Unocal court’s fuzzy handling of this issue).
169
170
and abetting liability for international law violations is unlikely to be clear
enough or universally condemned enough to satisfy the Sosa standard.
Significant questions remain about how to define which corporate officers’
knowledge should be adequate to satisfy the mens rea standard,
what
level of control is adequate to pierce the veil between an international
subsidiary and its domestic parent corporation, and what types of
interactions
between corporations and foreign governments are permissible.
The Court in Sosa seemed to be looking for very clear international
law violations, admittedly not limited to Blackstone’s trilogy but on
the
same order of clarity and condemnation.
Selling poisonous gas to a
genocidal regime, knowing the purpose of the purchase, would qualify.
143
But less dramatic international law violations might not.
However, there is something of an apparent contradiction in this: If
144
Sosa requires ATS causes of action to be universally condemned and well
defined, and if international precedent clearly establishes that corporate
aiding and abetting liability can exist in some situations, why would that
not be sufficient to satisfy Sosa? Part of the answer lies in the fact that
Sosa was dealing with implied causes of action under the ATS. The general
trend in federal jurisprudence has been away from recognizing implied
rights of action,
145
and Sosa follows that trend.
146
Additionally, interna-
143. See, e.g., Corrie, 403 F. Supp. 2d at 1027 (holding that sale of construction
equipment, later allegedly used to violate international law, does not constitute aiding and
abetting).
144. See In re Tesch & Others (Zyklon B Case), 13 Ann. Dig. 250, 250–53 (British
Military Ct. 1946) (reporting that two German industrialists, whose firm provided gas for
Nazi death chambers, were sentenced to death after being found guilty of international law
violations as well as for being accessories to murder).
145. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 311 (2001) (Stevens, J.,
dissenting) (noting majority’s skeptical view of Court’s implied right of action
jurisprudence). Note, also, that Central Bank is itself an implied right of action case.
Additionally, Casto notes the constitutional difficulties of following implied right of action
analysis for the ATS, chiefly motivated by separation of powers concerns in the field of
foreign affairs. See Casto, supra note 4, at 482; see also Adamu v. Pfizer, Inc., 399 F. Supp.
2d 495, 501 (S.D.N.Y. 2005) (noting difficulty of finding cause of action because of implied
cause of action precedent).
146. The connection between Central Bank, the ATS, and implied causes of action was
noted by a federal district court in California adjudicating a TVPA claim. In Mujica v.
Occidental Petroleum Corp., the court argued that Central Bank did not apply to claims under
the TVPA because such claims are not implied causes of action. See 381 F. Supp. 2d 1164,
1172–74 (C.D. Cal. 2005). To bolster support for this argument, the court asserted that
claims under the ATS, the most similar federal statute to the TVPA, also support aiding
and abetting liability, see id. at 1173–74 (citing Doe I v. Unocal Corp., 395 F.3d 932, 947
n.20 (9th Cir. 2002)), an approach that seems to ignore the implications of Central Bank on
the ATS itself. It acknowledged that Sosa might have circumscribed the availability of
aiding and abetting liability under the ATS but viewed Attorney General Bradford’s 1795
opinion letter as clearly providing for ATS aiding and abetting liability. See id. at 1173 n.6;
see also Breach of Neutrality, 1 Op. Att’y Gen. 57, 59 (1795) (“[A]ll citizens of the United
States . . . who should render themselves liable to punishment under the laws of nations, by
committing, aiding, or abetting hostilities . . . would not receive the protection of the
United States . . . .”).2007] ATS RULES OF DECISION 483
tional precedent itself typically follows the principle set out in Central
Bank: The Nuremberg statute, the I.C.T.Y., the I.C.T.R., and the Rome
Statute all contain specific language permitting aiding and abetting liability.
All of this suggests that a court should be hesitant to find aiding
and abetting liability in many types of ATS cases under federal law.
147
One potential avenue around this problem would be to use other
bodies of federal common law, such as liability for “agency, joint venture,
or reckless disregard,” as advocated by the concurrence in Unocal.
The
advantage to using these bodies of law, as pointed out by the concurrence,
lies in their well-developed character.
This approach has been
criticized, however, for its potential to create strict liability for corporate
actors.
150
149
That is, both agency and joint venture liability could create
liability even absent knowledge on the part of the corporation that their
coventurers or agents were committing violations of international law.
In turn, liability for reckless disregard, while incorporating some element
of knowledge, only goes part of the way to showing that the corporation
had the requisite mens rea and could still result in some level of strict
liability.
152
Failing to meet accepted notions of mens rea in this way,
148
151
147. See supra notes 119–125 and accompanying text. The First Congress’s piracy
statute, by explicitly permitting criminal aiding and abetting liability, also would have
satisfied Central Bank if it had been a civil statute. See Act of Apr. 30, 1790, ch. 9, § 10, 1
Stat. 112, 114; see also supra note 118 and accompanying text (noting liability for aiding
and abetting pirates). The counterargument, however, would follow these lines: The ATS
simply directs federal courts to look to international precedent to determine if a violation
of the law of nations has occurred. In making that determination, a federal court would
look to things like the Rome Statute, the Nuremberg tribunals, and the I.C.T.Y. and
I.C.T.R. statutes. Seeing that those provide for complicity liability, the federal court could
conclude that international law sufficiently incorporates complicity liability to satisfy the
demands of Sosa and Central Bank. What this argument ignores, however, is that each of
the precedents cited above, with the exception of the Rome Statute, only applies to
particular occurrences of state-sponsored mass atrocity, and each one explicitly lists
complicity liability. The only one generally applicable, the Rome Statute, has not been
embraced by the United States. The Nuremberg and I.C.T.Y./I.C.T.R. precedents
admittedly establish the principle that, for genocide, complicity liability is possible under
international law. But most ATS cases will not involve allegations of genocide. This in turn
may suggest that the real question at issue in most ATS cases is whether the challenged
activities are condemned under international law with the same reprehension that
genocide is. That claim is much more difficult to affirm than the condemnation against
genocide, especially when the liability is an additional step removed as with aiding and
abetting. Because of the relatively restrictive nature of Sosa, efforts to force a court to rule
on the issue of international condemnation are likely to result in the dismissal of many of
the types of cases currently brought under the ATS.
148. See Unocal, 395 F.3d at 963 (Reinhardt, J., concurring) (advocating use of these
theories of liability instead of international aiding and abetting theories to permit case
against Unocal to proceed).
149. See id. at 967 (noting “extensive precedent” that exists to apply federal common
law standards of third party liability).
150. See Diskin, supra note 2, at 831 (noting that joint venture, agency, and reckless
disregard, as torts principles, “encompass strict liability”).
151. See id.
152. See id.
484 COLUMBIA LAW REVIEW [Vol. 107:457
these federal common law theories do not quite fit the needs of many
ATS cases.
In summary, while obstacles to applying aiding and abetting liability
exist in both domestic and international law, those in domestic law appear
to be more substantial than those in international law because of the
Supreme
Court’s decision in Central
Bank.
Although there is an apparent
contradiction between this conclusion and Sosa’s requirement of universal
condemnation and clear definition, it is in line with the current reluctance
among American courts to imply causes of action.
Additionally, an
attempt to solve this problem by using other bodies of federal common
law brings its own unique problems.
C. State Corporate Complicity Doctrine
Finally, state law could be chosen by ATS courts considering the cor-
porate complicity issue. While the doctrine of corporate complicity at the
state level will vary by jurisdiction, general principles can be ascertained.
The most appropriate civil action counterpart for aiding and abetting liability,
a criminal law concept, is section 876 of the Restatement (Second)
of
Torts, Persons Acting in Concert.
According to the Restatement, a
party is liable for harm resulting from a tort committed by another if the
party: (a) acts in concert or according to a common design with the
other tortfeasor; (b) knows the other tortfeasor is committing a breach of
duty and gives “substantial assistance or encouragement” to breach the
duty; or (c) breaches an independent duty to the victim and gives substantial
assistance or encouragement to the other tortfeasor to achieve a
tortious
result.
154
153
Comment (d) elaborates on the factors to be considered
by a court in deciding if the conduct reaches the level at which liability
is appropriate:
Courts should consider “the nature of the act encouraged,
the amount of assistance given by the defendant, his presence
or
absence at the time of the tort, his relation to the other and his state of
mind.”
155
The use of this standard to determine civil complicity liability in most
tort cases is unexceptionable and spans across jurisdictions.
Indeed,
the majority in Unocal cited to section 876 while arguing that the distinc-
156
153. Restatement (Second) of Torts § 876 (1979); see also K & S P’ship v. Cont’l
Bank, N.A., 952 F.2d 971, 980 (8th Cir. 1991) (“[L]iability for civil conspiracy is in
substance the same thing as aiding and abetting liability.”); Diskin, supra note 2, at 832–36
(advocating use of section 876 as federal common law standard for aiding and abetting
liability in ATS cases).
154. Restatement (Second) of Torts § 876(a)–(c).
155. Id. § 876 cmt. d.
156. See, e.g., Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1118 (C.D.
Cal. 2003) (citing to section 876 as part of California law); Smith ex rel. Estates of Boston
Chicken, Inc. v. Arthur Andersen L.L.P., 175 F. Supp. 2d 1180, 1209 (D. Ariz. 2001)
(observing that Colorado follows section 876(b)); Beneficial Commercial Corp. v. Murray
Glick Datsun, Inc., 601 F. Supp. 770, 772–73 (S.D.N.Y. 1985) (applying section 876 as New
York law); Sindell v. Abbott Labs., 607 P.2d 924, 932 (Cal. 1980) (using Restatement of
2007] ATS RULES OF DECISION 485
tion between domestic civil aiding and abetting liability and international
standards for aiding and abetting liability was not substantially different.
State civil aiding and abetting law does differ from other sources
of law in three important respects, however. First, unlike federal law, no
explicit statutory authorization is needed for a state court to apply the
principles of section 876 to cases before it.
157
State law thus avoids the
problems raised by Central Bank of Denver. Second, a large body of cases
interpreting this body of law has already been decided. Application of a
particular state’s interpretation of section 876 would thus overcome the
Unocal concurrence’s objection to the use of vague international standards.
Finally, application of state law does not suffer from the same
“democratic deficit” that plagues international law.
158
159
III. CHOICE OF LAW PRINCIPLES IN ATS AIDING AND ABETTING CASES
Having examined the background of the ATS and the possible bodies
of law that could govern civil aiding and abetting liability as an example
of an issue arising in ATS
cases in Parts I and II, this Note in Part III
evaluates
the principles a federal court should use to choose between the
three
available bodies of law.
In general, federal statutory law and federal
case law, as well as general choice of law principles, tilt in favor of choosing
state law as the relevant rule of decision for the aiding and abetting
question,
though this will not always be the case for all ATS
issues.
Part
III.A begins by analyzing whether federal courts are competent to choose
between the rules of decision in such fields, thus creating “federal common
law.”
Concluding that it is within the power of federal courts to
fashion a federal common law rule in ATS corporate complicity cases,
Part III.B looks to traditional choice of law principles to determine which
source of law should be chosen. Part III.C discusses the advantages of
choosing state law over other alternatives.
Torts § 876 (1939), which is substantially similar to Restatement (Second) of Torts § 876,
as California law).
157. See Doe I v. Unocal Corp., 395 F.3d 932, 951 (9th Cir. 2002). It concluded that
the chief difference between the international standard, as set forth by decisions of the
I.C.T.R. and I.C.T.Y., and the standard in section 876 was that the international standard,
in addition to providing liability for substantial assistance and encouragement, also
provided liability for providing moral support to the tortfeasor. See id.; see also infra notes
205–208 and accompanying text (describing how Unocal court reconciled this difference).
158. Diskin argues that section 876 should be applied to ATS cases but for different
reasons than those argued in this Note. See Diskin, supra note 2, at 834–36 (“The
principles of aiding and abetting, as supplied by the U.S. domestic law in 1789, comport
well with the standard set forth in section 876 of the Restatement.”).
159. Cf. Unocal, 395 F.3d at 967–68 (Reinhardt, J., concurring) (noting lack of
precedent interpreting international aiding and abetting standard as recently promulgated
by I.C.T.Y. and I.C.T.R.); Diskin, supra note 2, at 836 (“Application of section 876 also has
the benefit of avoiding the troublesome application of international tribunal precedents to
a domestic statute . . . .”).
486 COLUMBIA LAW REVIEW [Vol. 107:457
A. Federal Law and the Rules of Decision Act
The Rules of Decision Act (RDA) requires that “[t]he laws of the
several states, except where the Constitution or treaties of the United
States or Acts of Congress otherwise require or provide, shall be regarded
as rules of decision in civil actions in the courts of the United States, in
cases where they apply.”
The interpretation of this statute in Swift v.
Tyson
161
160
led to the Court’s famous flip-flop in Erie Railroad Co. v.
Tompkins, with the well-known assertion that “[t]here is no federal general
common law.”
Despite this pronouncement, federal courts continue
to make legitimate common law in some areas.
162
The most important
use of federal common law, as a general matter, is to fill the
“interstices”
of federal statutory law, a situation that often arises because
of
the national government’s theoretically limited powers and federal
character.
164
163
To determine the relevant rule of decision in cases before federal
courts, the Supreme Court essentially has directed that the well-known
Kimbell Foods two-step inquiry should be used.
First, the court should
determine if federal law should govern.
166
165
Put differently, this step asks
whether the Rules of Decision Act applies to the case at bar, because, if it
does, the state rule must be used. If the RDA does not apply, then the
second step is to determine which rule should be adopted as the federal
rule.
In other words, this step asks whether, despite clearly being in an
area of federal competence, state law should be applied anyway as the
167
160. 28 U.S.C. § 1652 (2000). While the statute naturally has its strongest application
in diversity jurisdiction cases, nothing in its text necessarily limits its application to such
cases. See, e.g., Note, Clearfield: Clouded Field of Federal Common Law, 53 Colum. L.
Rev. 991, 1002–06 (1953) (criticizing Supreme Court’s decision in Clearfield Trust Co. v.
United States, 318 U.S. 363 (1943), to apply federal instead of state law because it limits
application of RDA to diversity cases).
161. 41 U.S. (16 Pet.) 1, 18–19 (1842) (interpreting precursor to RDA as only
applying to state statutory law).
162. 304 U.S. 64, 77–78 (1938) (overruling Swift to include state common law in
scope of RDA).
163. See generally Richard H. Fallon, Jr. et al., Hart and Wechsler’s The Federal
Courts and the Federal System 696–98 (5th ed. 2003) (listing areas such as admiralty and
international relations as places where federal common law is still frequently made).
164. See, e.g., United States v. Kimbell Foods, Inc., 440 U.S. 715, 727 (1979)
(directing “federal courts to fill the interstices of federal legislation ‘according to their own
standards’” when Congress has not spoken in federal statutory schemes (quoting Clearfield
Trust, 318 U.S. at 367)).
165. See id. at 726–27 (determining first if federal rule should apply to case at bar
before turning to question of how to define federal rule).
166. See id. at 727 (“Federal law therefore controls . . . . The more difficult task . . . is
giving content to this federal rule.”).
167. See id. at 728 (“Whether to adopt state law or to fashion a nationwide federal
rule is a matter of judicial policy ‘dependent upon a variety of considerations always
relevant to the nature of the specific governmental interests and to the effects upon them
of applying state law.’” (quoting United States v. Standard Oil Co., 332 U.S. 301, 310
(1947))).2007] ATS RULES OF DECISION 487
appropriate rule of federal law. Whether to fashion a uniform federal
rule, applicable in every similar case in all federal courts, or to permit the
state rule to be used as the rule of federal common law depends primarily
upon the federal interest implicated in the case.
The approach used
in Kimbell Foods has been generally followed in the intervening years,
168
though it appears that the inquiry has been collapsed into a single question
of whether state law has been preempted and therefore displaced.
Thus, over the years the inquiry has ripened into a general presumption
that state law should apply unless it has been preempted.
171
In ATS cases, nearly all courts that have considered the question
have concluded that a federal rule of decision should apply to issues without
a clear rule of decision,
and a few have looked to state law to determine
the content of that federal rule.
172
At least two different justifications
exist for permitting federal courts to fashion common law in ATS
cases,
thus satisfying the first step in the Kimbell
Foods
inquiry.
The first,
and perhaps stronger, justification is that the ATS is a constitutionally
173
168. See id.; see also Paul J. Mishkin, The Variousness of “Federal Law”: Competence
and Discretion in the Choice of National and State Rules for Decision, 105 U. Pa. L. Rev.
797, 805 (1957) (describing two-step process and need for uniformity as one significant
factor to consider in deciding whether to forge new federal law or adopt state law).
169. See, e.g., Atherton v. FDIC, 519 U.S. 213, 217–20 (1997) (using two-step
approach); O’Melveny & Myers v. FDIC, 512 U.S. 79, 83–86 (1994) (same).
170. See, e.g., Boyle v. United Techs. Corp., 487 U.S. 500, 507 n.3 (1988)
(acknowledging that question of which rule of decision to apply can be formulated in
Kimbell Foods two-step approach or, as Court did in this case, in one step asking whether
state law has been displaced, concluding that it probably never makes a difference which
approach is used).
171. See, e.g., Semtek Int’l Corp. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001)
(listing cases that adopt state rule of decision as federal rule); cf. Note, supra note 160, at
1002–06 (suggesting that creation of federal common law in many cases will reduce RDA
to apply only in diversity cases).
172. See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105 n.12 (2d Cir.
2000) (describing approaches various federal courts have used); Corrie v. Caterpillar, Inc.,
403 F. Supp. 2d 1019, 1027 (W.D. Wash. 2005) (using federal common law approach);
Xuncax v. Gramajo, 886 F. Supp. 162, 179–80 (D. Mass. 1995) (using international law as
federal common law). See generally Stephens & Ratner, supra note 90, at 119 (noting
federal common law is developing on ATS choice of law issues).
173. See, e.g., In re Estate of Ferdinand E. Marcos Human Rights Litig., 978 F.2d 493,
503 (9th Cir. 1992) (approving of district court’s use of municipal law to determine
outcome of ATS case, which under traditional conflict of law principles applied law of
place of injury); Adra v. Clift, 195 F. Supp. 857, 866 (D. Md. 1961) (applying state law but
declining to state explicitly whether doing so constituted creation of new federal common
law or whether state law applied of its own force by virtue of RDA). Similarly, even the
Unocal majority was effectively using state law as the federal common law rule of decision,
though it did so in a way that purported to be bound by international law. See Doe I v.
Unocal Corp., 395 F.3d 932, 949 & n.25 (9th Cir. 2002) (adopting international law as rule
of decision in this case but acknowledging that on different facts that might be presented
in other cases it might adopt different rule); see also infra notes 205–208 and
accompanying text (discussing Unocal court’s fuzzy handling of this issue).
169
170
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