This Note will analyze the opinion of the three-judge panel of the Ninth Circuit regarding exhaustion of local remedies in Sarei. The panel majority concluded that the court could not read an exhaustion requirement into the ATCA "where Congress has declined to do so, and in an area of international law where the Supreme Court has called for the exercise of judicial caution rather than innovation." The Ninth Circuit has granted en banc rehearing in Sarei, and the matter remained pending as this Note went to press. However, regardless of whether the en banc panel can or should read an exhaustion requirement into the ATCA, Congress should amend the statute to clearly require exhaustion of local remedies before claims alleging a violation of the law of nations can be brought in U.S. courts under the ATCA.
Requiring Exhaustion: An International Law Perspective of the Alien Tort Claims Act in Sarei v. Rio Tinto, 38 Golden Gate U. L. Rev.