Kiobel Insta-Symposium: After Kiobel: Human Rights Litigation in State Courts and Under State Law

[Christopher A. Whytock is a Professor of Law and Political Science at UC Irvine School of Law]

I do not think the Court’s opinion in Kiobel means that ATS litigation in federal courts is going away any time soon.

First, make no mistake, the “presumption against extraterritoriality” applied by the Court in Kiobel is a new creation that is likely to give rise to further litigation.  In at least three ways, the new presumption is different from the Morrison-style presumption used by the Court to determine whether a federal statute applies abroad: (1) the coverage of the new presumption is different (it covers recognition of causes of action under the ATS), (2) the new presumption can be overcome on grounds not available for the Morrison version of the presumption (e.g., if “the claims touch and concern the territory of the United States . . . with sufficient force to displace the presumption”), and (3) a case-by-case analysis seems necessary to determine whether the new presumption is displaced (see my comments on Tom Lee’s earlier post).  I agree with Anthony Colangelo that the creation of this new presumption is a bit of a “strange move,” and I think it creates more problems than it solves (as evident in the analytical tension I pointed out between Parts III and IV of Chief Justice Roberts’ opinion).  These problems may take many more years of federal ATS litigation to figure out.

Second, the door still appears open for ATS claims against U.S. corporations and other defendants with sufficient presence to subject them to general jurisdiction under Goodyear v. Brown (decided after the Kiobel case was originally filed), even when the claims arise out of extraterritorial conduct (see my comments on Julian Ku’s earlier post).

That said, the Kiobel decision obviously imposes significant new limits on ATS litigation in the federal courts.  I therefore agree with Roger Alford (and with Trey Childress) that there may be a new wave of human rights litigation in U.S. state courts in the form of transnational tort claims.  Roger’s post does an excellent job outlining the attractions of the state court transnational tort approach.  And, as Paul Hoffman and Beth Stephens remind us in a recent article, human rights claims have been litigated in state courts for decades.

But there are also potential barriers to this approach, which Trey, Michael Ramsey, and I discuss in After Kiobel: International Human Rights Litigation in State Courts and Under State Law, our foreword to a special issue of the UC Irvine Law Review on Human Rights Litigation in State Courts and Under State Law that just came out:

• Personal Jurisdiction: In Goodyear v. Brown, decided in 2011, the Supreme Court limited the scope of general jurisdiction over corporate defendants.  This limitation is as much of a barrier in state courts as in federal courts.
• Immunity and Act of State Doctrine: Foreign sovereign immunity and the act of state doctrine likewise impose limits in state courts as well as federal courts.
• Removal: A defendant sued in state court may be able to remove the case to federal court.
• State Forum Non Conveniens Doctrines: States have their own versions of the forum non conveniens doctrine that defendants can and do rely upon to seek dismissal of transnational tort claims.
• Preemption: Federal foreign affairs preemption and other constitutional limits on state involvement in international matters may also pose barriers to human rights litigation in state courts and under state law—potentially even if styled as transnational tort claims.

As Roger notes, another issue is choice of law.  Different states use different choice-of-law methods to determine whether domestic law or foreign law provides the rule of decision in transnational tort cases.  Traditionally, American courts applied the lex loci delicti method, according to which they applied the tort law of the place where the alleged wrong occurred.  Thus, in a case involving alleged human rights abuses in a foreign country, an American court applying the traditional method ordinarily would apply the tort law of that foreign country.  However, since the onset of the so-called “choice-of-law revolution” that began in the 1960s, a growing number of states have replaced the traditional method with various “modern methods,” such as the most-significant-relationship method of the Second Restatement of Conflict of Laws.  By now, most U.S. states have abandoned the traditional method in favor of one of the modern methods.

The conventional wisdom is that American courts applying the modern methods are biased in favor of the application of domestic law, that American tort law is pro-plaintiff in comparison to the tort law of most other countries, and that plaintiffs able to obtain jurisdiction over defendants in American courts are thus able to benefit from favorable American tort law.  But in an earlier article, I provide empirical evidence that the modern methods are not biased in favor of domestic law and that judges tend to apply foreign law when the activity giving rise to the plaintiff’s claims occurred mostly or entirely outside U.S. territory.  This points to another potential challenge for human rights litigation pursued as transnational tort claims in state courts: when a plaintiff alleges wrongs that occurred in a foreign country, American courts may apply foreign law, even if that law is unfavorable to (or even precludes) a plaintiff’s claim.

These and other legal and policy issues raised by human rights litigation in state courts and under state law are explored in much more depth in the UC Irvine Law Review special issue (to which Paul Hoffman, Beth Stephens, Austen Parrish, Patrick Borchers, Anthony Colangelo, Kristina Kiik, Chimène Keitner, David Kaye and Michael Goldhaber so kindly contributed).

The bottom line is that human rights litigation in the United States will continue—perhaps less frequently in U.S. federal courts, and perhaps more frequently in U.S. state courts, but it will continue.  If human rights litigation in the United States becomes less frequent, it will likely be due as much to other changes to the American forum shopping system that have made U.S. courts less attractive for plaintiffs—such as stricter pleading standards, an aggressively applied forum non conveniens doctrine, and more restrictive personal jurisdiction—as to the Kiobel court’s new presumption against extraterritoriality.  Finally, it is important to remember that if U.S. courts increasingly close themselves to human rights claims, the courts of other countries may grow increasingly open to them—a trend that would be consistent with the more general trend toward increased multipolarity in transnational litigation.  By any account, it seems that litigators on all sides of human rights litigation in state courts and federal courts, in the United States and in other countries—as well as scholars of human rights, transnational litigation, and conflict of laws—have a lot of work ahead of them.