In association with the International Commission of Jurists

April 2013

17 Apr

[John H. Knox is Henry C. Lauerman Professor of International Law at Wake Forest University School of Law] As Anthony Colangelo has already noted, the fundamental difference between the majority and the Breyer concurrence in Kiobel is that the majority opinion applies a presumption against extraterritoriality, and the Breyer concurrence a presumption against extrajurisdictionality.  Kiobel illustrates how stark the difference can be.  The majority’s...

|
17 Apr

[Anthony J. Colangelo is Associate Professor of Law at SMU Dedman School of Law.] I’ll start with a few brief points about why I believe Justice Breyer’s opinion provides a sounder approach and is more legally accurate than the Court’s opinion. Then I will critique the Court’s opinion and, in particular, its extension of a presumption against extraterritoriality to causes of action...

|
17 Apr

We have invited several academic luminaries to post here at Opinio Juris over the next few days about the Supreme Court's decision in Kiobel. We also are going to try something new and invite young academics to submit guests posts for possible publication. We can't guarantee we will publish every post submitted, but we would love to broaden the discussion...

|
17 Apr

One idea that Kiobel has put to rest (at least here in US courts) is the idea that the ATS could be fairly read as a grant of universal civil jurisdiction.  On this theory, the ATS could be applied to overseas activities if the nature of the alleged action was so heinous as to rise to the level of a...

|
17 Apr

This is a tough loss for the human rights advocacy community, ending an era that began with the Second Circuit's rediscovery of the Alien Tort Statute in its 1980 decision in Filartiga v. Pena. As Julian highlights below, Justice Kennedy may have left the door ajar to future claims, but only barely. Even Breyer's concurrence -- the rejection of the...

|
17 Apr

[Apologies for all the random short posts, I think what make blogging interesting, sometimes, is that one can think out loud online.  Dangerous, I know, but fun too!] Here is one quick take:  As Deborah noted below, the Supreme Court voted 9-0 that the Kiobel plaintiffs should be dismissed because their claims against a foreign corporation for actions in a foreign...

|
17 Apr

Would've been helpful if he'd said a wee bit more. For now, we'll have to comb through the majority opinion in search of the questions he has in mind. In the meantime, worth noting the Court was 9-0 in affirming the Second Circuit's decision to dismiss the ATS complaint in this case. JUSTICE KENNEDY, concurring. The opinion for the Court is careful...

|
17 Apr

It is worth noting that Justice Kennedy offered a very short concurrence. Here is the complete text of his concurrence, which should hearten ATS supporters that there is some room for future extraterritorial ATS cases (a very small room, I guess). The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation...

|