“Perhaps [American Courts] Should Have Mediated the French Revolution”

From Judge Kleinfeld’s opinion dissenting from the Ninth Circuit’s referral of an Alien Tort Statute case to mediation:

It is risible to think that the first Congress wrote the Alien Tort Statute intending to enable federal courts to adjudicate claims of war crimes committed abroad. Were it otherwise, a French aristocrat who had escaped the guillotine and fled to Philadelphia could have sued French defendants in our newly organized federal courts, perhaps even Robespierre himself, and obtained an injunction commanding the bloody French revolutionaries to stop immediately. Perhaps we should have mediated the French Revolution, or issued a preliminary injunction to maintain the status quo while we decided whether we had jurisdiction? This silly hypothetical would be analogous to our adjudicating or mediating the class action claims in this case. The point of the Alien Tort Statute was to keep us out of international disputes, not to inject us into them.

I don’t know much about the Alien Tort Statute, so I don’t know whether Judge Kleinfeld is correct, or whether Judge Reinhardt’s response (joined by several other judges) is correct. But the Kleinfeld opinion struck me as quite worth reading. Thanks to How Appealing for the pointer.