In a move reminiscent of Citizens United, the Supreme Court has agreed to reargue Kiobel v. Royal Dutch Petroleum so as to reach an issue not squarely presented by the case in the first instance: whether the ATS applies extraterritorially.  Anyone watching the first (now moot) argument could get the sense that the Court was especially uncomfortable with the geographic broadness of the present statute. But, as counsel for the Petitioner emphasized during his argument, that was not a question presented. The Supreme Court, never letting the limits of a particular case get in its way, has now addressed that problem by slapping on the extra question itself.

This move strikes me as an exceptionally haphazard way of dealing with a complex statute. By gobbling up all of these questions in one case, the Supreme Court threatens to do a poor job of addressing any one particular issue.  I predict a sloppy opinion composed of various rudimentary answers to all sorts of ATS-related questions; I’d wager that the final product, a slapped-together product stumbling about like Frankenstein’s monster, will effectively emasculate the ATS and render Filartiga nothing more than an historical footnote.

-Michael