Kiobel Insta-Symposium: Deepening the Divide

[Katherine Florey is Professor of Law at UC Davis]

I come late to this discussion.  Professors Alford and Whytock have adeptly explored the question of whether international human rights litigation might be reframed under state tort law.  To their observations, I would add the following: Because state choice-of-law methodology is incredibly diverse, it is difficult to make predictions or generalizations about the overall prospects for human rights cases in state court.  Regardless of what the general landscape might hold, however, it is easy to imagine scenarios in which foreign plaintiffs successfully pursue human rights claims arising abroad by invoking state tort law.  Consider a claim subject to the conflicts methodology used in California, known as comparative impairment.  Although comparative impairment is among the more nuanced and sophisticated of modern conflicts methodologies, it is also persistently biased toward forum law.  For example, before a California court will even consider the possibility of applying foreign law, the party advocating for the application of such law must demonstrate that foreign law materially differs from California law and that the foreign jurisdiction has an interest in having its law applied.  Given the near-universality of tort law principles of some sort, the first requirement, in particular, may prove problematic for defendants arguing that their conduct should be governed by a foreign jurisdiction’s laws.  Comparative impairment additionally favors forum law when it comes to damages.  Courts applying California conflicts methodology have consistently held that foreign jurisdictions have no interest in limiting damages as to non-resident defendants.  Even in some cases involving defendants who are residents of the damages-limiting jurisdiction, some courts have applied California law.

It is easy to imagine how these principles could converge to create appealing prospects for human rights plaintiffs seeking to bring state tort claims.  Indeed, recent cases like Bowoto v. Chevron, in which the court applied California law to claims by Nigerians for activities undertaken by Chevron in Nigeria, provide a ready template.

The possibility that some human rights litigation will be displaced into state court is thus very real, even if the extent of that displacement is difficult to predict.  And that leads me to a further observation.  To the extent that state courts increasingly operate concurrently with federal courts as forums for the litigation of cases with extraterritorial elements, the disparate treatment of extraterritoriality issues under state and federal approaches becomes ever more problematic. And Kiobel seems likely to compound those problems, not only because it pushes another category of foreign-squared or -cubed cases into state court, but because it takes the federal law of extraterritoriality in a direction increasingly incompatible with state conflicts approaches.

What do I mean by this?  I see two main ways in which Kiobel’s reasoning is likely to impede useful dialogue between federal and state approaches.  The first is the meaning, and relevance, of territory in assessing the scope of a sovereign’s prescriptive jurisdiction.  Everything about Justice Roberts’s opinion reflects a narrow, stubbornly physical notion of territoriality.  He seeks to crisply cordon off from the ATS’s reach “conduct occurring within the territorial jurisdiction of another sovereign” – a category that (because it assumes a definition of territorial jurisdiction based on the physical location of conduct) seems both question-begging and potentially troublesome to apply in practice.  And his odd final formulation – that the presumption might be “displace[d]” as to claims that “touch and concern the territory of the United States” – suggests an even more constrained view of the relationship between law and territory.  Justice Roberts’s territoriality is one not of a sovereign, but of a landowner.  By contrast, modern state conflicts approaches, in reaction (perhaps overreaction) to the rigidly territorial approach of the First Restatement, have tended to sideline territoriality entirely.  Famously, modern conflicts approaches tend to privilege the parties’ domiciles over the site of relevant events; even when location of events does come into play, the place of both conduct and injury may frequently be relevant.  But even more broadly, modern conflicts doctrine speaks in terms of relationships and interests.  It has done more than reject territorial formalism; it has made it largely irrelevant.

Second, and more practically, Kiobel cements the sense that the Court has conclusively abandoned an approach to extraterritoriality grounded in comity and international norms in favor of one rooted entirely in statutory interpretation.  Whatever might be said for or against this shift more generally, it virtually guarantees that state courts applying predominantly common law will find little or nothing in the Court’s recent case law to guide them.  This is not for lack of interest or concern on the part of state courts, which have often earnestly attempted to follow the Court’s extraterritoriality approach to the extent that they can.  In the wake of Morrison, some state courts have interpreted state statutory law to be consistent with its federal models; some state courts, for example, have limited the extraterritorial application of state RICO statutes in light of federal precedents doing the same.  But Morrison or Kiobel shed precious little light on the question of how far state law should extend when no legislative intent exists about which to make presumptions.

All of this means that state conflicts doctrine and principles governing the extraterritorial reach of federal statutes are likely to drift farther apart.  Further, it means that state courts are bereft of guidance at a time when they are increasingly likely to need it.  State choice-of-law doctrine, developed to deal with trivial interstate differences over guest statutes or interspousal immunity, seems increasingly provincial when it is pressed into service for weighty matters of corporate responsibility and human rights.  It is possible that, for the moment, personal jurisdiction and forum non conveniens issues will forestall a rush of foreign-cubed plaintiffs into state courts.  But if not, where do we go from there?