THE IRRATIONALITY OF UNIVERSAL CIVIL JURISDICTION

摘要

Thirty years ago, the federal courts transformed the Alien Tort Statute (ATS) - an obscure provision nearly as old as the United States itself - into the basis for an unprecedented experiment in universal civil jurisdiction. That experiment recently came to an end when the Supreme Court held in Kiobel v. Royal Dutch Petroleum Co. that the ATS does not apply extraterritorially. Thus, if universal civil jurisdiction has a future in the United States, it will need to be through legislative action. Courts and commentators have engaged in fierce debate over nearly every aspect of the ATS, but they only rarely and superficially have considered the purpose and potential justification for the universal civil jurisdiction that was being exercised. This Article takes that issue head on. It examines how universal civil jurisdiction works and shows that it differs in fundamental ways from the universal criminal jurisdiction that nominally served as its basis. Once these differences are understood, it becomes clear that universal civil jurisdiction accomplishes little, is rarely, if ever, justified, and should not be legislatively revived.