THE ORIGINAL SOURCE OF THE CAUSE OF ACTION IN FEDERAL COURTS: THE EXAMPLE OF THE ALIEN TORT STATUTE

• Published in: Virginia law review 2015-05, Vol.101 (3), p.609-689
• Main Authors: Bellia, Anthony J., Clark, Bradford R.
• Format: Article
• Language: English
• Subjects: Alien Tort Claims Act (United States); COMMON LAW; Constitutional law; Court decisions and opinions; Courts of law; Debates and debating; Federal courts; Federal law; Indictments; INTERNATIONAL LAW; Judges & magistrates; Judicial powers; Judicial system; Judicial writs; JUDICIARY; Jurisdiction; Law schools; Legal proceedings; Legal research; PUNISHMENT; State court decisions; State law; State laws; Statutory law; Torts
• ISSN: 0042-6601

Federal common law causes of action-actions created neither by Congress nor by state law-have long generated debate among judges and scholars. In 'Erie Railroad Co. v. Tompkins', the Supreme Court famously rejected "federal general common law." Nonetheless, the Court has cautiously embraced several specific enclaves of federal common law over the ensuing decades. 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. For instance, may federal courts recognize an implied cause of action for the violation of a federal statute that does not itself create a cause of action? Relatedly, may federal courts recognize an implied cause of action for the violation of the Constitution when neither the Constitution nor a federal statute specifically creates one? Although courts and scholars continue to debate these questions, they have not reached a consensus on how to resolve them.