This Article aims to make sense of this neglected area of ATS law. I contend that the salient issue in these deceased-victim cases is not whether the nonvictim plaintiffs have standing to sue but rather whether they have a viable cause of action in the first place. Standing and cause of action concepts have an uneasy relationship in law. Although the distinction between constitutional standing and cause of action inquiries is well established, the division is less clear where, as here, standing doctrine is used to define a plaintiff’s eligibility to bring suit. Indeed, reliance on standing terminology in this context often obscures and confuses what should otherwise be a straightforward determination into the merits of a litigant’s claim. Building on this insight, I argue that, at bottom, the deceased-victim issue in ATS cases turns not on statutory standing principles but on whether the plaintiff satisfies the substantive conditions that trigger recovery. In this way, the alternative framework I propose recasts the deceased-victim issue as essentially a merits inquiry into the nonvictim plaintiff’s eligibility to recover damages. Given the kinds of damages typically requested in these ATS cases, I conclude that wrongful death and survivorship principles ultimately govern this analysis. Part II of this Article begins with the Supreme Court’s seminal opinion in Sosa, which offers the High Court’s most authoritative discussion to date on the scope of the ATS and the litigation commenced pursuant to its authority. Although Sosa does not address the deceased-victim issue directly, the decision establishes several principles that guide the analysis of this open question of ATS law. Next, Part III examines the prevailing approach to the deceased-victim issue, which as described above, adopts a formulation rooted in the terminology of standing doctrine. After describing this approach in some detail, I argue that it is untenable in both theory and practice, citing different instances in which courts have wrestled with the current framework to rather unsatisfactory results. Part IV then outlines the alternative framework previewed above. First, I lay out the proposed approach in general terms, comparing deceased-victim human rights claims to wrongful death and survival actions available in traditional tort litigation. I then argue that courts should recognize a federal common law cause of action for death in violation of international law, as well as a federal common law rule of survivorship for international law tort claims litigated in federal court. I further contend that state law should generally supply the rules of decision for determining the proper plaintiff in ATS cases involving deceased victims. This analysis relies on federal common law principles deployed in the analogous jurisprudential settings of constitutional tort litigation and maritime wrongful death law. Part IV concludes with a discussion of the conceptual and practical advantages of the proposed approach as compared with the prevailing framework.
Alastair J. Agcaoili,
Wrongful Death and Survival Actions for Torts in Violation of International Law,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol50/iss2/4