Kiobel Roundtable: What is the Purpose of the ATS? Should That Matter?

I have very much enjoyed our guest commentary on the Kiobel extraterritoriality issue and can’t resist adding my two cents.  In short, I am pretty dissatisfied with the arguments made by the petitioners, respondents and the United States government. I am not dissatisfied because the arguments are “wrong”, but because none seem to offer a persuasive theory of the purpose of the ATS.

As I have indicated before, I am sympathetic to a variation of Professor Bradley’s argument that the ATS should be limited to cases that would interfere with a foreign sovereign’s domestic affairs. I would go farther, however, and limit the ATS to cases implicating the sovereign responsibility of the United States (as this amicus brief argues).  As a practical matter, both of us would allow ATS lawsuits against U.S. citizens in some cases, even when those citizens acted outside the territory of the United States.  But my position would not allow ATS lawsuits against foreign nationals that are resident in the United States unless one can show that the U.S. has some sovereign responsibility for the extraterritorial actions of a foreign corporation.  In any event, both of these approaches offer a persuasive (or at least a coherent) theory of the purpose of ATS: to allow foreign nationals to seek civil redress for actions that implicate the sovereign responsibility of the United States.

The Kiobel respondents made a much broader argument, however. They (joined by the always influential Jack Goldsmith of Harvard) insisted an a flat across-the-board-no-exceptions-even-for- piracy prohibition on the extraterritorial application of the ATS.  I think this argument makes a lot of sense if one has only been reading recent Supreme Court jurisprudence on the presumption against extraterritorial application of U.S. law, but it is not one that is easy to reconcile with subsequent ATS jurisprudence.  Nor does it find an easy fit with a theory of the ATS’ purpose.  Why would the drafters of the ATS want to prevent foreigners from seeking redress for actions by a U.S. national abroad if it would permit the same action for actions by a US national at home? (The “reverse marbois”).

Although the respondents’ position overreaches somewhat, the Kiobel petitioners’ approach overreaches wildly, but hides this fact by emphasizing various possible procedural limitations on ATS lawsuits (none of which they admit would apply to this case).  At the core, the Kiobel petitioners are arguing that the ATS allows universal civil jurisdiction whether or not there is a nexus or connection to the United States. There is no support for this reading of the ATS in either the text or history of the ATS.  At best, the Kiobel petitioners offer two arguments: 1) the ATS would have applied to pirates on the high seas, and therefore should apply to modern day analogues to pirates (“Hitler, Inc.”); 2) The ATS was applied extraterritorially in Filartiga or similar cases, and therefore should continue to be read to do so.  The second argument doesn’t get you all that far, since the extraterritoriality issues weren’t raised in those cases, or in Sosa.

Only the first argument offers a theory of the ATS’ purpose, but that theory fails to draw on actual historical evidence about the ATS.  The best evidence is not any case or memo or reference to the ATS and piracy, but simply a citation to Sosa v. Alvarez Machain (which similarly offered no actual historical evidence for its point).  Since piracy was made a crime under U.S. federal laws a year after the ATS was enacted, it is not clear that the ATS would have applied to such cases. But even if it did, I am far from sure that allowing ATS claims against pirates can be easily transformed into allowing ATS claims against “Hitler, Inc.” when “Hitler, Inc.” is acting in cooperation with a foreign sovereign in a matter that has no link to the United States.

Paul Hoffman did a terrific job for the petitioners on this point. He made an eloquent plea to the Court about how it would be wrong to prevent the ATS from applying to a foreign corporation aiding, for instance, Syria with chemical weapons.  But he elides a couple of points.  There are already a variety of criminal and regulatory laws that would apply to any such corporation.  And no other country in the world would permit a civil lawsuit against that foreign corporation if that corporation had no other connection to its territory (even Syria and even for chemical weapons).    To do something that no other country would allow based on the flimsy text of the ATS is hard to accept.

But both the petitioners and respondents at least offer a theory of the ATS’ purpose. I can’t quite figure out the U.S. government’s position. Why should the presumption against extraterritoriality apply only to cases involving foreign corporations who are alleged to have aided and abetted a foreign sovereign? This sounds like a neat result for Shell, and a nice compromise, but it doesn’t make any sense otherwise.

Do we need such a theory of the ATS’ purpose? From a litigation standpoint, I suppose the answer is no. But from the perspective of a scholar and an observer of the ATS, it seems crucial and central.  One of the problems with the development of the ATS has been that courts have largely given up trying to determine the purpose of the ATS, and have simply taken it where litigants have pushed them.