Kiobel Insta-Symposium: The ATS After Kiobel: Less Bark but More Bite?

by Chimene Keitner

[Chimène Keitner is Professor of Law, University of California Hastings College of the Law.]

The Kiobel majority concludes that the plaintiffs in that case impermissibly sought to extend a U.S. cause of action to foreign conduct by foreign companies against foreign victims (even though the victims subsequently became lawful U.S. residents). It dismisses the historical practice of allowing suits for transitory torts (which I have explored in more detail here) by reasoning that the cause of action in ATS cases comes from U.S. law, not foreign or international law (the latter of which does not provide “causes of action” as such). As the first part of the majority’s opinion acknowledges, the presumption against extraterritoriality cannot apply in a literal fashion to the ATS, because the statute is “strictly jurisdictional.” The majority opinion deals with the hybrid quality of ATS claims (which translate certain clearly defined international norms into federal common law causes of action) by treating ATS claims like any other claim brought under a federal statute. This departs from the majority’s approach in Sosa, which took the more nuanced position that federal courts do not “lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism.” Under Kiobel, federal courts have not lost “all” such capacity, but they appear to have lost much of it, contrary to what the Sosa majority believed was the intention of the First Congress, and contrary to the (in my view) more conceptually defensible approach in Justice Breyer’s concurrence, which has also been endorsed by Anthony Colangelo and John Knox in this OJ symposium.

The majority’s “narrow approach” leaves a number of specific questions open, but it also resolves a few broader issues that are likely to arise in future cases. Under the majority’s reasoning, there should be no Article III problem with remaining ATS suits, because the ATS applies (and thus “arises under”) federal law. It follows that U.S. law will govern various aspects of the claim, including the standard for accomplice liability (i.e., knowledge), and the availability of corporate liability and punitive damages. In that sense, the Kiobel decision has left us with a geographically truncated, but perhaps substantively more robust, ATS. ATS claims (including those against foreign defendants that, in Justice Kennedy’s words, are “covered neither by the TVPA nor by the reasoning and holding of today’s case”) may be brought against individuals and against corporations, where there is a greater connection to the forum than the defendant’s “mere corporate presence” in the United States. Several such claims are currently making their way through the appellate courts.

2 Responses

  1. I must admit some curiosity as to what relevant ATS claims could be remaining at this point.  You mention in your final sentence that there are some, but could provide some examples?

  2. I’d suggest taking a look at Marty Lederman’s OJ post and Oona Hathaway’s Lawfare post for suggestions about the types of cases that might go forward post-Kiobel. I agree with them, and with Roger Alford, that the key will be lower courts’ interpretation of the majority’s “touch and concern” language, and whether they focus on U.S. “territory” or construe territory to include U.S. “interests” — since although Roger is obviously correct that the majority did not embrace Justice Breyer’s approach, they also didn’t embrace the Alito/Thomas approach, and Justice Kennedy at least seems to have joined the majority based on the assumption that its opinion leaves some wiggle-room for non-TVPA cases to proceed (for example, against U.S. corporations, or against foreign perpetrators seeking safe harbor in the U.S. for Sosa-qualifying offenses other than torture and extrajudicial killing).  

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