Document Type
Article
Publication Date
2023
Abstract
The Supreme Court’s jurisprudence surrounding the Alien Tort Statute (“ATS”) reflects the phenomenon of shadow amendments, an inevitable outcome of statutory construction. These judicial interpretations altered the ATS and narrowed its reach. Through repeated shadow amendments, the Court has moved the ATS far beyond its original thirty-three word configuration and understanding. These shadow amendments reflect an aggressive form of statutory construction, an ironic description for a Court that has long championed deference to Congress and fealty to legislative text. This dynamic is evident in Nestlé USA, Inc. v. Doe, the Court’s most recent ATS decision. But shadow amendments are not limited to the ATS; they occur whenever courts interpret statutes, regulatory provisions, or even constitutional text. Characterizing judicial interpretations as shadow amendments highlights their unique status and practical impact. They are not formal amendments—only Congress can amend a statute. Yet, they achieve a similar outcome. The term “shadow amendment” provides an accurate description of judicial interpretation as legislation. Because of their ubiquity and profound consequences, shadow amendments merit careful monitoring.
Recommended Citation
William J. Aceves,
Shadow Amendments,
60
Harv. J. on Legis.
27
(2023).
Available at:
https://scholarlycommons.law.cwsl.edu/fs/411