Why Kiobel’s Rejection of Universal Jurisdiction Matters

Our discussion of Kiobel has been fascinating, but it has been focused on the question of what exactly is left of the ATS in the future and what differences exist between the majority opinion and the various concurrences.

In our contribution today to Forbes.com, John Yoo and I focus on Kiobel’s significance in light of the history of ATS litigation.  Building on my earlier post on this subject, we argue that the real significance of Kiobel is its unanimous rejection of an interpretation of the ATS that would grant universal jurisdiction.

The Supreme Court’s unanimous decision last week to dismiss a lawsuit alleging human rights violations by Royal Dutch Shell in Nigeria is already being portrayed as a victory for big corporations over human rights victims. While the decision will allow some multinational corporations to avoid being sued in the United States for business activities overseas, the real significance of the Court’s decision is that it provides a wise example of judicial restraint and deference to the role of Congress and the President to set American foreign policy.

In particular, we argue:

Kiobel’s unanimous rejection of universal civil jurisdiction is thus the most significant part of its ruling. Writing for the Court, Chief Justice John Roberts held that the presumption that U.S. law does not apply to acts outside the territory of the United States should apply to ATS cases. Championed by Justice Antonin Scalia in an earlier 2010 decision involving the reach of U.S. securities laws, this rule forces Congress and not the courts to decide whether to apply U.S. law to foreign activity.

This common sense rule reserves for the political branches the crucial right to weigh the foreign policy consequences of subjecting foreign conduct to U.S. law. It also gives Congress a chance to determine whether it wants to give private plaintiffs the power to enforce such norms or keep it in its traditional home, the President and the executive branch.

So before we all end up in the weeds of interpreting Roberts’ last paragraph and Kennedy’s concurrence, let’s keep in mind the bigger picture.  Nine justices rejected the universal jurisdiction reading of the ATS.  Breyer’s concurrence would have preserved only Filartiga-style safe harbor cases under a weird (or at least creative) version of the protective principle.  This is already a pretty big shift in most observers’ understanding of the ATS, and, in our view, a welcome one.