Statutory Analogy and Liability of American Corporations Under the Alien Tort Statute
In Jesner v. Arab Bank, PLC, the Supreme Court held that foreign corporations are not subject to liability under the Alien Tort Statute (ATS). But the Court did not reach a decision as to whether American corporations could be liable. In a non-controlling portion of the plurality opinion, Justice Kennedy invoked statutory analogy. He argued that corporate liability should not be available under the ATS because the Torture Victim Protection Act (TVPA)—which does not allow corporate liability—represented Congress’s judgement as to the appropriate scope of ATS actions. The dissenting justices contested this argument, pointing out that another analogous statute, the Anti-Terrorism Act, allowed corporate liability and was more relevant given Jesner presented a terrorism, not torture, claim.
This Note is the first to directly and systematically address the practice of statutory analogy as invoked by the Jesner plurality, and concludes that this practice is inadvisable in several regards. It is not supported by prior ATS precedent from the Court, and in fact departs from that precedent. Neither is it supported by more general precedent utilizing statutory analogy that the plurality cites to, nor by precedent on borrowing statutes of limitations (where statutory analogy is best-established), nor by statutory interpretation literature and precedent more generally. Further, particularities of the ATS’ sui generis history and purpose, precedent rejecting ATS-TVPA statutory analogy regarding extraterritoriality, and lingering interpretive uncertainties all discourage the practice’s usage. Additionally, this Note engages with debate over whether to categorize differing claims under a statute uniformly or whether to focus on the particular norm at issue when seeking out analogous statutes. Ultimately, this Note concludes that the practice of statutory analogy as employed by the plurality in Jesner in fact expands judicial discretion despite claiming to constrain it, as would a norm-by-norm approach. The Court, having granted certiorari in Doe v. Nestlé as to whether the ATS allows liability for domestic corporations, should avoid resort to statutory analogy in deciding the case.
