There has been a recent surge in lawsuits brought under the Anti-Terrorism Act (ATA), enacted in 1990 to enable persons injured by “an act of international terrorism” to bring civil suits in federal court. For more than a decade after its enactment, not a single reported case referenced the ATA’s civil suit provisions. Indeed, in 2002, the U.S. Court of Appeals for the Seventh Circuit stated that it was interpreting the ATA as a “case of first impression,” and that “[n]o court has yet considered the meaning or scope [of the civil suit provisions] and so we write upon a tabula rasa.” Boim v. Quranic Literacy Institute (Boim I), 291 F.3d 1000, 1001, 1009 (7th Cir. 2002). By contrast, there are now more than 100 reported decisions, with that number mounting daily, and the Second Circuit recently certified two questions to the New York Court of Appeals in a closely watched ATA case.
The surge in litigation results from courts, understandably sympathetic toward victims of terrorism, creatively interpreting the ATA so as to allow plaintiffs to bring lawsuits against third-party institutions seemingly unconnected to terrorist acts, especially banks and other financial institutions. As one dissent noted in a Seventh Circuit decision regarding the ATA, albeit in a slightly different context, “[t]his is judicial activism at its most plain,” motivated by “zeal to bring justice to bereaved parents.” This article analyzes the trend.
