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In debates over the scope of the Alien Tort Statute (ATS), one historical document has played an especially prominent role. That document is a short opinion by U.S. Attorney General William Bradford, issued in the summer of 1795, concerning the involvement of U.S. citizens in an attack by a French fleet on a British colony in Sierra Leone. In the opinion, Bradford concluded that "[s]o far ... as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts; nor can the actors be legally prosecuted or punished for them by the United States." He also expressed the view that the actors could be prosecuted for crimes on the high seas, while noting that "some doubt rests on this point" in light of the language of the relevant criminal statute. Finally, he stated—in an obvious reference to the ATS—thatthere can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by acivilsuit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States . . . .The Bradford opinion contains one of the few early historical references to the ATS, so it not surprisingly has received a lot of attention. Numerous academic articles, judicial opinions, and litigation briefs have invoked the Bradford opinion, for a variety of propositions. Reliance on the opinion has increased since the Supreme Court's 2004 decision inSosa v. Alvarez-Machain, in which the Court cited the opinion in support of the proposition that the ATS provides jurisdiction over certain common law causes of action derived from the law of nations. As an illustration of its perceived significance, both sides discussed the opinion in the oral argument before the Supreme Court in the first hearing in the pending ATS case,Kiobel v. Royal Dutch Petroleum Co.

Ever since the Supreme Court's 1829 decision in Foster v. Neilson, it has been settled that some treaties ratified by the United States are "non-self-executing" and thus are not enforceable in U.S. courts unless implemented by Congress. Despite its pedigree, both the theory behind the self-execution doctrine and its mechanics have long befuddled courts and commentators. There is significant uncertainty, for example, concerning the materials that are relevant to the self-execution analysis, whose intent should count in determining self-executing status, the proper presumption that should be applied with respect to self-execution, and the domestic legal status of a non-self-executing treaty.

Under contemporary treaty practice, a nation's signature of a treaty typically does not make the nation a party to the treaty. Rather, nations become parties to treaties through an act of ratification or accession, which sometimes occurs long after signature. Nevertheless, Article 18 of the Vienna Convention on the Law of Treaties, which many commentators regard as reflecting customary international law, provides that when a nation signs a treaty it is obligated to refrain from actions that would defeat the "object and purpose" of the treaty until such time as it makes clear its intent not to become a party to the treaty. Some commentators further claim that this object and purpose obligation means that a nation that has signed a treaty is prohibited either from violating the treaty altogether or from violating the treaty's "core" or "important" provisions. Attaching legal obligations to the signing of a treaty, however, poses a constitutional issue for the United States because the U.S. Constitution divides the treaty power between the President and Senate, whereas only the President and his agents are involved in the signing of treaties. This constitutional issue has broad significance because, for a variety of political and other reasons, the United States often signs but fails to ratify treaties. The constitutional issue is not eliminated by the president's authority to conclude "sole executive agreements," since both constitutional structure and historical practice suggest that this authority is significantly narrower than the power of the President and Senate to jointly conclude treaties. The drafting history of Article 18, however, offers a partial solution to this difficulty, since it indicates that the object and purpose obligation was intended to prohibit only actions that would substantially undermine the parties' ability to comply with or benefit from a treaty after ratification, an obligation that has little relevance to the treaties for which signing obligations would be most constitutionally problematic.