Justice Breyer’s Concurrence Would Have Limited ATS Suits to Cases Where U.S. Could Invoke Protective Principle

by Julian Ku

Interestingly, the four liberal justices would have also dismissed the Kiobel plaintiffs on a different theory: that this case (involving actions by a foreign corporation against foreign plaintiffs in a foreign sovereign’s territory) does not “substantially or adversely affect an important American national interest…”  In other words, Justice Breyer seems to want to graft the “protective” principle of prescriptive jurisdiction onto the ATS, rather than the universality principle that I would have expected.  Here is a summary of Justice Breyer’s proposed reading of the ATS.

… I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.


One Response

  1. We have already allowed such a safe harbor as noted by the Constitution Project report of a couple of days ago – so not much here. Clearly the Federal interest has been shown to be to shield torturers rather than hold them accountable.

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