Whether Foreigner or Alien: A New Look at the Original Language of the Alien Tort Statute

Abstract

In the Supreme Court's only opinion regarding the Alien Tort Statute (ATS), 1 Sosa v. Alvarez-Machain, the Court unanimously agreed that although the first House of Representatives modified the Senate's draft of what eventually became the Judiciary Act of 1789,2 "it made hardly any changes to the provisions on aliens, including what became the ATS. ' ' 3 The Court did not point out any of these changes, but did comment that, because of the "poverty of drafting history," modem commentators have been forced to concentrate on the text of the ATS itself.4 As noted by the Court, commentators have remarked on the in-