03 May Samuel Moyn Applauds the Death of the Alien Tort Statute
Columbia University historian Samuel Moyn has a tough post up on the Foreign Affairs website on Kiobel and the arc of the Alien Tort Statute, which he sees as having served the narrow constituency of us rather than being true to the historical origins of human rights:
The ATS has been a boon for U.S. law schools, in which students rightly interested in saving the world have been taught to view the statute as an all-powerful tool. But the popularity of the law might have led them to neglect the fact that it offers only a quick fix for a few people with access to U.S. courts, not fundamental change.
The takeaway, with which I’m sympathetic: human rights advocates would be better served to abandon the ATS, even to the extent that Kiobel leaves the door open.
Far better would be to move on to other ways of protecting human rights — less centered on courts, less rushed for a quick fix, less concerned with spectacular wrongs to individuals and more with structural evils, and less disconnected from social movements abroad. And there are also better ways to protect humanity in the age of powerful multinational corporations, notably regulatory schemes that connect far more clearly to the originally welfarist meaning of human rights. If it moved in these directions, the human rights movement would give its conservative adversaries reason not to gloat but to tremble.
I’m sure there will be room for both paths, that is, for some to keep at it with the ATS while others look to put non-judicial mechanisms better to work. But one takeaway for US law schools would be to give a little more play to the latter. Pressing corporate social responsibility norms may not lend itself to the same sort of sexy clinical offerings as the ATS, but it may be better preparation for today’s real world of human rights practice.