SOSA v. ALVAREZ-MACHAIN - Legal Information Institute

Cite as: 542 U. S. ____ (2004) 27Opinion of the Courtamounted to common law causes of action.BAgainst these indications that the ATS was meant tounderwrite litigation of a narrow set of common law actionsderived from the law of nations, Sosa raises twomain objections. First, he claims that this conclusionmakes no sense in view of the Continental Congress’s 1781recommendation to state legislatures to pass laws authorizingsuch suits. Sosa thinks state legislation would havebeen “absurd,” Reply Brief for Petitioner Sosa 5, if commonlaw remedies had been available. Second, Sosa juxtaposesBlackstone’s treatise mentioning violations of thelaw of nations as occasions for criminal remedies, againstthe statute’s innovative reference to “tort,” as evidencethat there was no familiar set of legal actions for exerciseof jurisdiction under the ATS. Neither argument isconvincing.The notion that it would have been absurd for the ContinentalCongress to recommend that States pass positivelaw to duplicate remedies already available at commonlaw rests on a misunderstanding of the relationship betweencommon law and positive law in the late 18th century,when positive law was frequently relied upon toreinforce and give standard expression to the “broodingomnipresence” 14 of the common law then thought discoverableby reason. As Blackstone clarified the relationbetween positive law and the law of nations, “those acts ofparliament, which have from time to time been made toenforce this universal law, or to facilitate the execution of[its] decisions, are not to be considered as introductive ofany new rule, but merely as declaratory of the old fundamentalconstitutions of the kingdom; without which it——————14See Southern Pacific Co. v. Jensen, 244 U. S. 205, 222 (1917)(Holmes, J., dissenting).