23 Apr (More) Spiking the Football on Kiobel
In addition to the Ku/Yoo essay in Forbes, I’ll just point out two more positive takes on Kiobel from FOBs (friends of the Blog).
In Lawfare, John Bellinger expresses satisfaction with the Roberts opinion, and takes some credit for raising the presumption against extraterritoriality issue in government briefs during the Bush Administration and in the first round of Kiobel briefing. He also adds a quick note on Bauman, guessing that the Court will reverse on personal jurisdiction grounds and not reach the ATS issues.
In the WSJ, Eugene Kontorovich of Northwestern Law offers a more sweeping take on Kiobel. My favorite line: “Yet many who think the U.S. should not be the world’s policeman nonetheless want it to be the world’s judge.” (One question: Is the converse also true?)
The whole essay is worth reading. He also offers a cautionary lesson for academic lawyers, most of whom failed to take the extraterritoriality issue more seriously.
The unanimous vote in Kiobel also shows how the legal academy and bar tend to underestimate the strength of arguments that they politically disfavor. Foreign-cubed suits had proceeded for decades without any serious questions raised about their propriety. Instead, professors largely cheered them on. Nearly everyone anticipating the Kiobel decision (including myself) predicted a Supreme Court vote starkly divided on ideological lines. Yet all nine justices voted unreservedly in favor of ending ATS suits against foreign corporations….
Kevin Jon HellerPosted at 19:50h, 21 April
“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.”
Really? Courts have been entertaining ATS lawsuits for more than two decades, yet the President and Congress have never once attempted to amend the ATS statute to prohibit those lawsuits. So doing it for them is “judicial restraint”?
I knew that a majority of the Court were bitterly conservative. I had no idea they were also psychic.