An Oasis in the Human Rights Litigation Desert? A Roadmap to Using California Code of Civil Procedure Section 354.8 as a Means of Breaking Out of the Alien Tort Statute Straitjacket

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Fernando C. Saldivar, S.J. is a Jesuit Scholastic and a candidate for the M.A. in Social Philosophy at Loyola University Chicago. He received an A.B. from Georgetown University in 1999 and a J.D. from Southwestern University School of Law in 2005. He was in private litigation practice in California from 2005 until he entered the Society of Jesus in 2016.

As a result of the Supreme Court’s increasingly restrictive reading of the Alien Tort Statute (“ATS”), victims of human rights abuses committed abroad have found the federal courthouse door sealed shut. Especially in the wake of Jesner v. Arab Bank, where the Court held that foreign corporations cannot be defendants under the ATS, such entities may feel they can act abroad with impunity, without fear of being held accountable in a U.S. court. However, the situation may not be anywhere near as dire as it may seem. Sitting quietly in California’s Code of Civil Procedure (“CCP”) since 2016, Section 354.8 opens the doors to the largest state court system in the country, offering a powerful, potentially game changing, tool to international human rights litigants who would otherwise be denied access to federal court under the ATS.

CCP section 354.8 expands the definition of certain torts under state law: assault, battery, wrongful death, and conversion. California law now substantively provides remedies to victims who can demonstrate that the underlying tortious conduct constitutes torture, genocide, a war crime, an attempted extrajudicial killing, or a crime against humanity. The legislative history indicates a clear intent to provide a judicial forum to those who may otherwise be denied access to the courts. This law is unprecedented, unique, and largely unknown to the international human rights community. This Article changes that by providing a roadmap for using California Code of Civil Procedure Section 354.8 as a means of breaking out of the federal ATS litigation straitjacket to pursue civil tort actions for human rights abuses committed abroad in a U.S. court.

This Article provides a primer on ATS caselaw as it has developed over the last thirty years, painting the picture of how the “ATS litigation straitjacket” came to be and thereby highlighting the novelty of California’s human rights regime. It then examines exactly what is authorized in CCP section 354.8, specifically the areas that have been the subject of protracted ATS litigation. Analyzing issues related to personal jurisdiction and court access, this Article provides a roadmap for navigating access to California’s state court system. The importance of California as a forum for international human rights litigation is discussed by showing how the state already has global influence, and its laws, particularly its human rights laws, already receive international recognition.

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