Bellia and Clark on on the Alien Tort Statute and the Origins of Federal Common Law Actions

Anthony J. Bellia Jr., Notre Dame Law School, and Bradford R. Clark, George Washington University Law School, have posted The Original Source of the Cause of Action in Federal Courts: The Example of the Alien Tort Statute, which appears in the Virginia Law Review 101 (2015): 609

Judges and scholars have long debated the legitimacy and contours of federal common law causes of action — actions created neither by Congress nor by state law. The question of federal judicial power to recognize federal common law causes of action arises in a range of contexts in the field of federal courts, including with respect to whether federal courts may recognize an implied right of action for the violation of a constitutional or statutory provision that does not specifically create one. Recently, the power of federal courts to recognize federal common law causes of action has emerged as a key question under the 1789 Alien Tort Statute (“ATS”), a purely jurisdictional statute that the Supreme Court recently has attempted to apply in accordance with its original meaning. In interpreting the ATS to allow federal courts to adjudicate some federal common law causes of action, the Supreme Court has embraced a common — but mistaken — assumption about how early federal courts operated: namely, that early federal courts found causes of action in the ambient unwritten law of the era.

This Article explains why this widespread assumption is false. Early federal courts did not rely on ambient common law to supply causes of action in civil suits within their jurisdiction. Rather, early Congresses enacted specific statutes that prescribed the civil causes of action available in federal court. In particular, the Process Acts of 1789 and 1792 defined the causes of action that federal courts could adjudicate in actions at law, as well as in cases in equity and admiralty and maritime jurisdiction. In enacting these laws, Congress did not leave federal courts free to derive causes of action from the common law in the abstract. Rather, Congress specifically adopted several preexisting, well-developed bodies of law for use in federal court — most notably, requiring federal courts to borrow state causes of action in common law cases. While the Process Acts of 1789 and 1792 remained in force, federal courts adjudicated only those causes of action authorized by Congress. This history has important implications for questions of federal judicial power today. The example of the ATS illustrates how a proper understanding of the original source of the cause of action in federal court can both inform and transform debates over the origins and nature of federal judicial power.

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