Tag Archives: kiobel

Thomas Jefferson Disagrees with the Supreme Court’s Decision in Kiobel

Posted on by
27

In 1792, Thomas Jefferson, as the first Secretary of State, made note of complaints that had been lodged against the U.S. by both Spain and France. In different incidents, citizens of Georgia had breached international law by trespassing into Florida (then a part of Spain) and into the territorial waters of Santo Domingo for the purpose of recapturing and kidnapping slaves. In examining the remedies that might be available to the United States to prevent this situation from reoccurring in the future, Jefferson affirmed the Alien Tort Statute’s extraterritorial reach, taking it as obvious that the statute conferred jurisdiction over acts that took place in a foreign sovereign’s territory:

XXX. — Opinion relative to a case of recapture, by citizens of the United States, of slaves escaped into Florida, and of an American captain enticing French slaves from St. Domingo.

December 3, 1792.

Complaint has been made by the Representatives of Spain that certain individuals of Georgia entered the State of Florida, and without any application to the Government, seized and carried into Georgia, certain persons, whom they claimed to be their slaves. This aggression was thought the more of, as there exists a convention between that government and the United States against receiving fugitive slaves. The minister of France has complained that the master of an American vessel, while lying within a harbor of St. Domingo, having enticed some negroes on board his vessel, under pretext of employment, bought them off, and sold them in Georgia as slaves.

1. Has the general government cognizance of these offences? 2. If it has, is any law already provided for trying and punishing them?

1. The Constitution says .. that Congress shall have power to “define and punish piracies and felonies committed on the high seas, and offences against the law of nations.” These offences were not committed on the high seas, and consequently not within that branch of the clause. Are they against the law of nations, taken as it may be in its whole extent, as founded, 1st, in nature; 2d, usage; 3d, convention? So much may be said in the affirmative, that the legislators ought to send the case before the judiciary for discussion; and the rather, when it is considered that unless the offenders can be punished under this clause, there is no other which goes directly to their case, and consequently our peace with foreign nations will be constantly at the discretion of individuals.

2. Have the legislators sent this question before the Courts by any law already provided? The act of 1789, chapter 20, section 9, says the district courts shall have cognizance concur rent with the courts of the several States, or the circuit courts, of all causes, where an alien sues for a tort only, in violation of the law of nations: but what if there be no alien whose interest is such as to support an action for the tort? — which is precisely the case of the aggression on Florida. If the act in describing the jurisdiction of the Courts, had given them cognizance of proceedings by way of indictment or information against offenders under the law of nations, for the public wrong, and on the public behalf, as well as to an individual for the special tort, it would have been the thing desired.

The same act, section 13, says, the “Supreme Court shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics or domestic servants, as a court of law can have or exercise consistently, with the law of nations.” — Still this is not the case, no ambassador, &c., being concerned here. I find nothing else in the law applicable to this question, and therefore presume the case is still to be provided for, and that this may be done by enlarging the jurisdiction of the courts, so that they may sustain indictments and informations on the public behalf, for offences against the law of nations.

[A note added by Mr. Jefferson at a later period. ]

On further examination it does appear that the 11th section of the judiciary act above cited gives to the circuit courts exclusively, cognizance of all crimes and offences cognizable under the authority of the United States, and not otherwise provided for. This removes the difficulty, however, but one step further; — for questions then arise, 1st. What is the peculiar character of the offence in question; to wit, treason, felony, misdemeanor, or trespass? 2d. What is its specific punishment — capital or what? 3d. Whence is the venue to come?

As these offenses had taken place in the territory of other sovereigns — and not upon the high seas, which is the geographical extent of Congress’ authority to prescribe “piracies and felonies” — Jefferson concluded that the Constitutional authority for acting against the Georgians’ incursions came from the “offences against the law of nations” clause. Jefferson then considered whether Congress had previously, pursuant to this authority, provided for any laws that might reach the challenged conduct and, in examining the section now known as the Alien Tort Statute, finds that Congress had. Unfortunately for Jefferson, the ATS would not protect the U.S.’s interest in this instance, leading him to  lament the apparent lack of federal jurisdiction for such a case to be heard before the federal courts: “what if there be no alien whose interest is such as to support an action for the tort?”

But Jefferson implicitly accepted that, under the ATS, an alien possessed an individual cause of action for an extraterritorial tort. Although no plaintiff existed to have standing in the particular instances contemplated here, the U.S.’s jurisdiction over the defendants was obvious to Jefferson. Constitutional authority to provide a cause of action over the offence was authorized under the “offences against the law of nations” clause; subject matter jurisdiction in the district courts was provided for by section 9 of the Judiciary Act of 1789; and personal jurisdiction was to be had over the defendants owing to both their presence in the state of Georgia and their status as U.S. citizens. No ‘presumption against extraterritoriality’ would have applied, under Jefferson’s understanding, because such a judicial construction would have directly undermined the congressional purpose underlying the ATS.

-Susan

Kiobel’s Bowman Problem: Where the Legislature Has Enacted Laws to Defend the U.S. Government’s Interests, the Presumption Against Extraterritoriality Does Not Apply

Posted on by
Reply

Last week, in Kiobel v. Royal Dutch Petroleum, et al., the Supreme Court deviated from its prior two decisions under the ATS, and held that the ATS does not confer jurisdiction over violations of the law of nations that occur within a foreign territory. The ATS, the Court can concluded, can be presumed to apply to activity on the high seas, but nevertheless cannot be presumed to apply to activity that occurs outside of both U.S. territory and the high seas:

the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. ‘[T]here is no clear indication of extraterritoriality here,’ and petitioners’ case seeking relief for violations of the law of nations occurring outside the United States is barred.

Although I fully agree with the Court’s conclusion that jurisdiction did not exist over the claims being asserted by the Kiobel plaintiffs, the majority’s reliance on the presumption against extraterritoriality to reach this holding is ill-placed. Although I strongly disagree with the majority’s claim that the ATS does not evidence an intent to apply abroad, under the reasoning applied in prior precedent, the presumption against extraterritoriality should not apply here, as the Legislature is not required to specifically define a locus for statutes enacted to defend the U.S.’s security interests.

Which was precisely the First Congress’ purpose in including the ATS in the Judiciary Act of 1789. As the majority acknowledges, the ATS was enacted, at least in major part, in order to “avoid[] diplomatic strife” by ensuring there would be a federal forum in which the citizens of foreign states could be provided relief for violations of the laws of nations. If such relief was not made available, and an alien’s injuries were not remedied, then the United States could itself be liable for a breach of international law. Because a private individual’s violation of international law could endanger the United States’ national interest, and require the United States to offer restitution for the offense, an ATS suit was a matter of public, and not private, concern.

Given that background, it seems preposterous to hold that the ATS does not evidence an intent to apply extraterritorially. However, under the Court’s own case law, the presumption against extraterritoriality does not apply to laws which “are enacted because of the right of the Government to defend itself[,]” which is precisely the purpose for which the ATS has been enacted. United States v. Bowman, 260 U.S. 94 (1922).

In Bowman, it was held that the presumption against extraterritoriality did not apply to a federal statute prohibiting “conspir[ing] to defraud a corporation in which the United States was and is a stockholder.’” There, the Supreme Court reversed the district court holding that it lacked jurisdiction over the offense, which had taken place on ships in the high seas and in the territory of Brazil, because the crime had been ”committed without the jurisdiction of the United States or of any State thereof and on the high seas or within the jurisdiction of [a foreign state].”

We have in this case a question of statutory construction. The necessary locus, when not specially defined, depends upon the purpose of Congress as evinced by the description and nature of the crime and upon the territorial limitations upon the power and jurisdiction of a government to punish crime under the law of nations. Crimes against private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement and frauds of all kinds, which affect the peace and good order of the community, must of course be committed within the territorial jurisdiction of the government where it may properly exercise it. If punishment of them is to be extended to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard.

But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents. Some such offenses can only be committed within the territorial jurisdiction of the Government because of the local acts required to constitute them. Others are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense.

Although Bowman concerned a criminal statute, and not a civil act, the Court’s reasoning in that case applies to the ATS with equal force. It was not necessary for Congress to make specific provision for the ATS’s jurisdictional reach, because the ATS could be presumed to reach any act which might endanger the U.S.’s natural interests, so long as such jurisdiction could be exercised in conformity of international law. (And if the U.S. was prohibited under international law from exercising jurisdiction over a particular offense, then the ATS’s purpose isn’t implicated anyway, because in such a case the U.S. is not at risk of breaching international law by failing to provide a forum or remedy.)

Bowman also refutes Kiobel’s holding that the ATS could be implied to cover piracy even in the absence of a specific provision noting that Congress intended the statute to apply to the high seas. Although the majority conceded that the ATS extended to acts that took place outside the U.S. — which is precisely the sort of statutory construction that the presumption against extraterritoriality prohibits — the Court was unconcerned by this inconsistency. The majority swept this issue aside, stating only that ”[w]e do not think that the existence of a cause of action against [pirates] is a sufficient basis for concluding that other causes of action under the ATS reach conduct that does occur within the territory of another sovereign[.]” But as Michael noted in a previous post, this distinction between ‘high seas’ and ‘foreign territory’ is a new creation, unsupported by prior case law. This decision is also inconsistent with Bowman, in which the Court noted that, where the presumption against extraterritoriality has been held to apply, it applies equally to acts committed on the high seas as to acts committed on foreign territory. Prior to Kiobel, when a statute failed to specify a locus, there was no basis by which a statute could be held to differentiate between the high seas and foreign territories — either both were out or both were in, absent a specific Congressional directive that a distinction be made.

-Susan

A New Supreme Court Case Shows What Might’ve Been in Kiobel

Posted on by
Reply

For some time now, Susan and I have been saying that courts already have a number of tools at their disposal to limit the reach of the ATS, even before Kiobel. Because of those tools, there was really no need for the Court to reach out and limit the scope of the potential substantive claims that could be brought under the ATS. Although the Court was concerned that the ATS permitted undue judicial interference in foreign affairs, courts could’ve already used things like personal jurisdiction, comity, forum non conveniens, and the like to keep themselves out of distant foreign fights.

The Supreme Court granted cert in a case today that shows just how that could’ve worked. DaimlerChrysler AG v. Bauman might first first appear to be a rather dry personal jurisdiction case, lovable only to civil-procedure nerds. But the root question–whether a company may be subjected to a lawsuit in the United States based only on the acts of its subsidiary–goes to a question quite close to the one in Kiobel. (And interestingly, Bauman includes claims under the ATS.) If the court uses Bauman to reemphasize the jurisdictional importance of corporate separateness, then all the problems that the Court was trying to solve in Kiobel would’ve gone away.

Take Kiobel itself as an example. That case involved a Nigerian subsidiary (who was the primary tortfeasor) and a British/Dutch parent. So far as I know, the Nigerian subsidiary had no contacts with the United States, so personal jurisdiction would be hard to establish as to that defendant. (I believe that the District Court ultimately dismissed the Nigerian subsidiary for that very reason.) The British/Dutch parent had an office in the United States, which probably shouldn’t be enough for jurisdiction.  But see Wiwa v. Royal Dutch Petro., 226 F. 3d 88, 92 (2d Cir. 2000). So if we’re being truthful, the lower courts were probably comfortable exercising jurisdiction over the British/Dutch parent because of the parent’s “American connection” through a separate, American subsidiary. But if Bauman goes the way that I expect, than that connection wouldn’t be nearly enough. 

In any event, the Supreme Court probably took Bauman because it applies a test embraced by Wiwa, and Wiwa was invoked (and repudiated) by a few of the players in Kiobel. In other words, the Supreme Court was reminded that a bad case was floating out there and saw a chance to fix it. Still, I wish that Bauman had also reminded the Court that Kiobel was a needless overreach, which could’ve been avoided through the strict application of first-year civil-procedure principles. Too late now.

-Michael

These Aren’t The Droids … Err … Jurisdictional Hooks You’re Looking For

Posted on by
4

Folks are already getting creative in their efforts to define potential claims under the new, post-Kiobel ATS. Over at Opinio Juris, Thomas Lee suggests:

Another [case where the ATS might still be invoked] might be an instance where there is US sovereign complicity in the violation outside of the territorial United States, for instance, where a US or alien subcontractor, acting under U.S. governmental authority or authorization, has violated specific, universal, and obligatory customary international law norms (e.g., Common Article III) by enhanced interrogation techniques employed against an alien plaintiff in a foreign sovereign territory.

I’m not sure how that would work. If we’re talking about bringing claims against the individual offender, then you’re going to run into problems with the Westfall Act, which transforms tort claims against federal actors (acting in their official capacties) into Federal Tort Claims Act claims against the United States.  See, e.g., Garcia v. Sebelius, 867 F. Supp. 2d 125, 134-36 (D.D.C. 2012) (magically tranforming ATS claims into FTCA claims). And the FTCA bars claims that arise from (a) intentional torts; or (b) acts in foreign countries, so ATS claims would be dead-in-the water. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 700-12 (2004). For the same reason, a potential alien plaintiff couldn’t bring a claim against the United States directly.

-Michael

Citizens United Is Not Relevant

Posted on by
Reply

Josh Blackman, who I usually agree with, writes this:

What precedent is *not* cited anywhere in Kiobel?

Citizens United. Not a single citation anywhere. So much for an expansion of the corporate-personhood-bugaboo.

I don’t get it. Kiobel, as written, doesn’t really go anwhere near the corporate liability issue. How on Earth would Citizens United then be relevant? One could just as easily say:

What precedent is *not* cited anywhere in Kiobel?

Roe v. Wade. Not a single citation anywhere. So much for an expansion of the abortion-rights-bugaboo.

-Michael

Kiobel: Hating on Common Law?

Posted on by
Reply

My last post on Kiobel got me thinking: is this just a product of good-ole-fashioned conservative hatred of judge-made law? The first part of the majority’s analysis begins by noting that the statute wasn’t used much for the first 200 years or so of its existence. The fact that the Court needed to cite this rather irrelevant fact hints that the Court is none-to-pleased with the emergence of the ATS as an honest-to-goodness statute of judge-made liability, and feels that it’s killing off a statute that never should have developed into anything in the first place. And, in the same vein, the Court later complains about the difficulties of defining standards of liability in the international law context. So what? That difficulty should have been apparent to the Court in Sosa, but it wasn’t a reason to trash the statute then, and it shouldn’t be now.

Erie said more than 70 years ago that ”[t]here is no federal general common law.” I get the sense in reading Kiobel that the conservatives continue to wish that were true, even though the ATS cries out for quite a different conclusion.

-Michael

Congressional Wishes vs. Federal Common Law

Posted on by
1

One of the incongruities of Kiobel comes from the fact that the Court is looking to Congress’ wishes or intent in trying to figure out whether the ATS applies abroad. As the Court simultaneously concedes, the ATS is really a very thin reed that opens the window to jurisdiciton, and it is courts that actually determine whether a claim exists. See Kiobel, slip op. at 5 (“[The ATS] instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law. … [T]he question is not what Congress has done but instead what courts may do.”)

I’m not aware of any other case involving this kind of “federal common law” where Congress’ intentions are treated as relevant, let alone decisive. The closest situation I can bring to mind is Federal Rule of Evidence 501, which instructs courts to apply common law notions of privilege. With some rare exceptions, I do not believe that courts analyzing privileges under that rule go back to the original Congressionally-enacted rule and ask what the rule’s “intent” was. My point is, I struggle with the idea that Congress put the power to define this cause of action in the hands of courts–under some very fuzzily-defined standards–but courts are unwilling to use that power in a certain fashion because courts did not receive a particular form of instruction from Congress.

More to come later.

-Michael

Update: Howard Wasserman does a better job of explaining this than I do.

Misunderstanding the Presumption Against Extraterritoriality

Posted on by
2

The Supreme Court applied the infamous presumption against extraterritoriality today to knock out Kiobel v. Royal Dutch Petroleum. The majority opinion is so terrible that Susan and I have spent the last couple hours basically yelling at each other over gChat. But now I’d like to focus on one aspect of the opinion that I find particularly infuriating: Roberts’ misapprehension of the presumption itself.

First, let’s imagine that there are three areas of the world:

  • The United States (our territory);
  • All other countries (their territory); and
  • Land belonging to no one (the high seas, Antarctica, etc.).

The language of the Alien Tort statute is pretty heavy on language suggesting it applies to all three of these areas–it mentions “aliens” and “the law of nations,” among other things. But we know that the statute applies to at least the first and third areas, as the Sosa decision told us that the law can apply to piracy.  (Let’s ignore the fact that boats sailing on the high seas might actually be considered part of their flag countries.)

The majority, from all appearances, believes that the presumption against extraterritoriality can only be overcome where it can be shown that Congress specifically intended for the relevant law to apply to all three areas. Laws governing “uncontrolled” areas, like the high seas, evidently aren’t relevant because they don’t ”impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign.” So, even though the ATS reaches two of the three, it can’t be said to be “extraterritorial.”

Wrong, wrong, wrong.

First of all, the presumption against extraterritoriality presumes that a law does not reach any conduct outside the United States’ borders, whether that conduct occurs in uncontrolled areas or areas controlled by other countries.  See, e.g., Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949) (“[L]egislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.”); Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 357 (1909) (“All legislation is prima facie territorial.”). So, any admittedly covered conduct outside the borders of the United States would meaningfully rebut the presumption. This is really the converse of the well-accepted principle that the presumption against extraterritoriality applies even to “uncontrolled” areas–well, except in the case of the ATS, as of today.  See generally Smith v. United States, 507 U.S. 197, 204 (1993) (applying the presumption to conduct in Antarctica).

Second, Roberts seems to think that the presumption against extraterritoriality is motivated by a concern over undue interference in other nations’ affairs. That would be stupid, as notions like comity, or even personal jurisdiction, could help address concerns over undue interference in separate sovereign affairs. In fact, Charming Betsy (which tells us to interpret laws in conformity with international law) would also keep us from overreaching, as it would lead courts to punish extraterritorial conduct only when international law actually imbues the United States with prescriptive jurisdiction. But all of this is something of a moot point because Roberts’ premise is false. The presumption is not motivated by concerns of interference. (If it was, it would probably be called something like “the presumption against intercessiones terra firma,” rather than the presumption against extraterritoriality.)  Rather, the Court has taken great pains to stress that it is “based on the assumption that Congress is primarily concerned with domestic concerns.”  Foley Bros., 336 U.S. at 285; accord Small v. United States, 544 U.S. 385, 388 (2005); Smith, 507 U.S. at 204 n.5. (If it were otherwise, the presumption analysis would probably always begin with an analysis of whether there is any conflict in the first place, as courts do in domestic conflict-of-law cases. But that’s not the way it works.) Given that every Justice seemed to concede that Congress was not only concerned with domestic matters when it passed the ATS, the presumption should have been overcome.

Susan and I will have a lot more to say about this. In the meantime, head over to Opinio Juris to get some good analysis, including this post from Julian Ku.

-Michael

Update: In rereading Morrison, the most recent extraterritoriality case, I found that even that decision acknowledged that conflicts of law have very little to do with the presumption.  See Morrison v. Nat’l Australia Bank Ltd., No. 08-1191, slip op. at 6 (S. Ct. June 24, 2010) (“The canon or presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law.”).

Susan’s Theory of the Secret Fifth Amendment in Kiobel, as explained via gchat

Posted on by
2

Michael:
I had a thought
The entire United States argument against extraterritorial application in this case is built around something like act-of-state doctrine.
Why don’t we just apply act-of-state doctrine?

Susan:
You could, and it should be part of it. But even Nigeria didn’t actually make a law saying human rights abuses is totes okay.
And also “but the country said it was okay” is not a get out of jail free card once you start with the genocide stuff.

Michael:
Well, wait.
Act of state is just the judgment of the legality of another nation’s conduct, right?

Susan:
Yes, but we’re not (necessarily) judging another nation’s conduct, for one — it’s a Kirkpatrick situation. And second, I don’t think the purposes of the act of state doctrine are supported if it’s interpreted to require a court to go “whelp, it’s not my place to say that another country shouldn’t commit genocide.”

Michael:
No

Susan:
Act of State = choice of law.

Michael:
Pause
I’m saying that the United States’ argument is built around an idea that seems roughly equivalent to act-of-state.

“HERE, ALTHOUGH PETITIONERS’
SUIT IS AGAINST PRIVATE CORPORATIONS ALLEGED TO
HAVE AIDED AND ABETTED HUMAN RIGHTS ABUSES BY THE GOVERNMENT
OF NIGERIA, ADJUDICATION OF THE SUIT WOULD NECESSARILY
ENTAIL A DETERMINATION ABOUT WHETHER THE NIGERIAN
GOVERNMENT OR ITS AGENTS HAVE TRANSGRESSED LIMITS IMPOSED
BY INTERNATIONAL LAW”

Susan:
Ohhh, no I’d disagree with you. I have a half-written post on it, but I’d argue the U.S.’s position incorporates the international component of the 5th amendment.

Susan:
Yeah, but that’s foreign affairs stuff. Act of State requires a court to select the foreign sovereign’s law for the court’s rules of decision.

Michael:
?!

Susan:
So it’s kinda where jus cogens comes into play. Nigeria can’t make a law saying “lol genocide is okay.”

Michael:
This is the definition I’m familiar with:
“This doctrine says that a nation is sovereign within its own borders, and its domestic actions may not be questioned in the courts of another nation.”
Wait
I understand now

Susan:
That’s the one sentence version, but it doesn’t mean that U.S. courts are categorically forbidden from questioning foreign countries’ acts.

Michael:
We’re talking about two conceptions of the act-of-state doctrine.
Mine was the broader one.
Yours is the more limited Supreme Court version.
Fair.

Susan:
“As we said in Ricaud, “the act within its own boundaries of one sovereign State …
becomes … a rule of decision for the courts of this country.” 246 U.S. at 310. Act of state
issues only arise when a court must decide–that is, when the outcome of the case turns upon–
the effect of official action by a foreign sovereign. When that question is not in the case,
neither is the act of state doctrine.”
I agree with you, I think, as far as aiding and abetting cases go.
Maybe for different reasons, though.

Michael:
I’m not saying that I think Kiobel actually implicates act of state.
I’m just saying that the U.S. position sounds much like act of state, such that there is no need to make new law if the U.S. is correct.

Susan:
Yeah, agreed.
I think the U.S. is 100% right.

Michael:
But…
Ugh
The U.S. thinks that there IS a need to make new law DESPITE the fact that we have act of state doctrine to solve the very problem that the U.S. uses to support the supposed need for new law.

Susan:
Okay wait I’m misunderstanding, then. What new law does the US think is needed?

Michael:
1) The U.S. believes that the Court should hold that the ATS does not apply extraterritorially in cases involving corporations.
2) It substantiates that position at least in part by invoking a notion that sounds just like act of state doctrine.

Michael:
See the United States’ distinction between “individual foreign perpetrators” and corporations

Susan:
When found residing in the United States.
An individual foreigner abroad (that somehow still had sufficient US contacts) would be in the same place.

Michael:
Maybe it would be more accurate to say that the U.S. is against ATS liability for the extraterritorial acts of corporations that do not have their principal place of business or headquarters here

Susan:
Yeah, part of the equation is subsidy-to-parent jurisdictional veil piercing.

Michael:
Maybe I was over-emphasizing the U.S.’s use of the word “individual.”

Susan:
This is why it’s all a 5th Amendment Due Process issue. The reasonableness of the US’s adjudicative jurisdiction here is both unconstitutional and in violation of international law.

My take was that individual humans can usually only really “be” in one spot at one time. Corporations are in many places at once. So a corporation’s existence in the US is not dispositive, like a human’s is.

Michael:
I see.
An interesting argument, but the U.S. is making that argument as a matter of international law and foreign policy, not from a Fifth Amendment perspective, no?

Susan:
Okay so maybe they don’t specifically say it, but it’s in there if you squint hard enough.

Michael:
Hahaha.
The “secret” Fifth Amendment argument?

Susan:
The Fifth Amendment in Exile.
Basically, the ATS is open ended, and hands out causes of action for int’l law violations like candy (pretend all of this is true)
But the court, before exercising jurisdiction, still has to consider: Personal jurisdiction, exhaustion of remedies, forum non conveniens,
Act of State, international comity, choice of law, political question doctrine, foreign affairs/case-specific judicial deference, and in corporate cases, corporate/subsidy-parent veil piercing issues.
All of these doctrines have some Due Process consideration behind them. (Separation of powers for a lot of them, too, but due process is a biggie.)
Even if the text of the ATS creates an opening for these suits, it’s just a grant of subject matter jurisdiction. All of the Due Process jurisdictional questions must be considered separately.
Like they would in any foreign-defendant case, but because of the subject matter, the judicial due process doctrines are firing on all cylinders.
So when you have a pirate residing in the U.S. being sued for torture and genocide he did abroad, and his home country says “fuck that bastard, you can sue him,” and the U.S. political branches are going, “fuck that bastard, you can sue him,” then the due process concerns evaporate.

Michael:
Interesting.
I still don’t think the United States is making that argument
But ok.

Susan:
I think in section C they are getting at it,
even if they don’t invoke the magic words of Due Process. But everything the US is counseling the court to consider is a doctrine that was invented either to serve due process, separation of powers, or both.

Michael:
You should write a post
A quick post.

Susan:
Maybe at lunch I’ll play around with getting my other post to work in WP.
Or maybe I’ll be uber-lazy and just copy and paste the chat.

Michael:
There you go.

Kiobel: A Blessing In Disguise?

Posted on by
Reply

When the Supreme Court first got hold of Kiobel v. Royal Dutch Petroleum, the case presented a relatively straightforward question: does the Alien Tort Statute allow for liability against corporations? Answering that question should have been a difficult enough task. But the Supreme Court wanted more, so it scheduled the case for a second argument that will consider whether the Alien Tort Statute applies extraterritorially–that is, whether (and when) it covers violations of the law of nations happening outside the United States.

For fans of the Alien Tort Statute, that second argument is a bad sign. Many (including me) worry that the Supreme Court is readying itself to use its trusty “presumption against extraterritoriality” to significantly weaken the statute. Many of the Justices’ questions at the first argument hinted that they didn’t want U.S. quasi-international law to reach outside the country. But if the Alien Tort Statute doesn’t punish acts outside the United States, it’s not likely to be of much use at all.

Yet after having some time to think it over, I’ve begun to wonder: would a “bad” Supreme Court decision really be that bad at all?

My assumption has always been that a Supreme Court decision squishing the Alien Tort Statute would spell the end of the matter. Plaintiffs would largely be out of luck, and international law professors around the country would have to find some other topic to occupy their time. But the reality is that the Supreme Court is often not the last word on a subject, especially where the subject concerns statutory (as opposed to constitutional) interpretation.

It’s actually pretty surprising how often Congress responds to Supreme Court decisions. Of course, there are some relatively well-known examples, such as the time when Congress “reversed” a Supreme Court employment discrimination case by passing an act named after the plaintiff in the case. But would you have ever guessed that Congress considers an average of 5 bills for each Supreme Court decision? That’s what one study found.

Of course, not all (or even many) of these Congressional responses are eventually passed. And some of these bills are positive “codifications” of Supreme Court decisions. Even so, the rate of “Congressional overrides” is surprisingly high, all things considered. According to one study, about one out of every ten Supreme Court statutory interpretation cases spurs Congress to issue legislation reversing or modifying the case. (Where the Court invalidates a statute for constitutional reasons, Congress has attempted to reinstate the statute in some form in 48% of cases.) The chance of Congressional reversal goes up when other factors are present, such as (1) when the decision is not unanimous, (2) there is significant media attention, (3) the United States was on the losing side of the case as an amicus, (4) there were a significant number of amici on the losing side, and (5) the case involves civil liberties issues.

If the Supreme Court guts the Alien Tort Statute in Kiobel, the case would seem to invite Congressional reversal. Kiobel has garnered a good amount of media attention. It’s drawn an enormous amount of amicus attention, too; 14 amicus parties supported the human rights victims in the initial argument, and a breathtaking 30 more briefs supported the victims in advance of the second argument. The United States initially supported the petitioner, even though it later switched its argument and now says it’s supporting “neither party.”  Thus, there are many voices supporting the Petitioner’s side. And when all is said and done, this case is not likely to be unanimous.

As I’ve said before, a negative decision for the petitioners in Kiobel also feeds the narrative that the Supreme Court loves corporations. (Just today, in fact, the Huffington Post had a blog article begging the Supreme Court to keep the “legal responsibilities” of corporations intact by finding for the Petitioner in Kiobel.) So Congress might be inclined to reverse Kiobel as convenient way to strike back at the Supreme Court’s purportedly cushy treatment of corporations–especially if Congress grows more liberal after the elections.

Congressional action would be welcome in this context. As it stands now, Alien Tort Statute litigation is something of a crapshoot. Some claims are allowed in some circuits and disallowed in others. The same is true when it comes to identifying “proper” defendants. Certainly, a Supreme Court decision in Kiobel could just as easily resolve this mess while keeping the statute intact. But the fuzzy treatment given to the statute in Sosa v. Alvarez-Machain makes me think that any Supreme Court decision in this area is likely to do a poor job of dispelling confusion. In contrast, when Congress enacts an override, research suggests that the legislation often does serve to clear up judicial confusion. Thus, Kiobel might convince Congress to finally get of its butt and do something about this vague little statute that hasn’t been touched since 1789, to ultimately better effect than a Supreme Court decision.

I’ll admit that I might just be stretching here to find a silver lining. But maybe, just maybe, this will all work out in the end.

-Michael