05 Feb A Very Short Comment on Kiobel
I’m dashing off to China in a few hours, but I couldn’t resist a brief post on the Second Circuit’s denial of rehearing on Kiobel v. Royal Dutch. Does anyone doubt this case is headed for the Supreme Court? Which is not to say that I disagree with the panel majority on the merits. indeed, I have offered a full-scale defense of the majority’s position in a recent issue of the Virginia Journal of International Law here. I will have more thoughts soon, but for now, here is the abstract.
This Article challenges the widely held view that the Alien Tort Statute (ATS) imposes liability on private corporations for violations of customary international law. I lay out the modern origins and development of this cause of action in U.S. federal courts and argue that doctrine rests on shaky, indeed illusory, analytical and jurisprudential foundations. Despite the absence of a well defined norm of customary international law that imposed liability upon private corporations, courts, when they even considered the validity of the claims, built a consensus around the fact that no norm existed forbidding the imposition of liability on private corporations. This doctrinal approach was particularly questionable in light of the Supreme Court’s position that recognition of causes of action under the ATS be limited to situations involving violations of norms that are specific, universal, and obligatory. Finally, I argue that the rise of this flawed consensus reveals that our system of federal courts is particularly ill-suited to the type of independent lawmaking that modern ATS doctrine has enabled up to this point. These developments indicate that courts should adopt a restrictive approach to corporate liability under the ATS going forward.