Kiobel Insta-Symposium: Kiobel Contradicts Morrison

by Anthony Colangelo

[Anthony J. Colangelo is Associate Professor of Law at SMU Dedman School of Law.]

I explained in a previous post why I think extending the presumption against extraterritoriality to causes of action crafted by forum law is strange. But there may be another (bigger?) problem with Kiobel’s application of the presumption to the Alien Tort Statute—namely, it appears to contradict Morrison v. National Australia Bank—the very case on which Kiobel overwhelmingly relies for both its reasoning and its result. As readers will recall, Morrison applied the presumption against extraterritoriality to the principal antifraud provision of the Securities Exchange Act.

As the Court in Kiobel itself, as well as many commentators (myself included) have observed, the presumption against extraterritoriality has traditionally applied only to what are generally referred to as “conduct-regulating” rules. These are rules that govern primary conduct and are easily classified under the category of jurisdiction to prescribe or prescriptive jurisdiction. Yet as the Court in Kiobel also explained, the ATS “does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.” Indeed the Court framed the relevant question under the ATS as “whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.” In short, the conduct-regulating rule under the statute comes from international law. And since international law applies everywhere, the presumption against extraterritoriality has no application to conduct-regulating rules of decision under the ATS. The Court appeared to accept this view, noted that the ATS was “strictly jurisdictional,” and then decided to apply the presumption anyway. In so doing, the Court explained that “to rebut the presumption, the ATS would need to evince a clear indication of extraterritoriality,” which the ATS failed to do.

Here’s the problem.  In Morrison (which, again, Kiobel overwhelmingly relied upon) the Court went out of its way to make clear that the presumption against extraterritoriality applies to conduct-regulating—as opposed to jurisdictional—statutes. Indeed an entire section of the opinion is devoted to precisely this point. Like Kiobel, Morrison involved claims arising out of activity abroad. The question in Morrison was “whether § 10(b) of the Securities Exchange Act of 1934 provides a cause of action to foreign plaintiffs suing foreign and American defendants for misconduct in connection with securities traded on foreign exchanges.” This question, in turn, boiled down to whether and how a presumption against extraterritoriality applied to the Exchange Act.

According to the Supreme Court in Morrison, the Second Circuit had, mistakenly, “considered the extraterritorial reach of § 10(b) to raise a question of subject-matter jurisdiction.” To correct this “threshold error,” the Court clarified the difference between prescriptive jurisdiction to regulate conduct on the one hand, and the “quite separate” issue of the district court’s adjudicative jurisdiction to entertain suit on the other. In Morrison, the presumption applied to the former but not the latter. To be sure, the Court explicitly observed that “the District Court here had jurisdiction under 15 U.S.C. § 78aa to adjudicate the question whether § 10(b) applies …” The Court elaborated:

Section 78aa provides: ‘The district courts of the United States . . . shall have exclusive jurisdiction of violations of [the Exchange Act] or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by [the Exchange Act] or the rules and regulations thereunder.’

To reiterate, Morrison, like Kiobel, involved claims arising out of activity abroad. Like § 78aa, the ATS is—as the Court in Kiobel openly acknowledged—“strictly jurisdictional.” And like § 78aa, the ATS authorizes U.S. courts with “jurisdiction.” Under the ATS, that “jurisdiction” encompasses “any civil action by an alien for a tort only, committed in violation of the law of nations.” If the ATS does not sufficiently indicate extraterritorial application, certainly neither does § 78aa. And if the district court in Morrison “had jurisdiction under 15 U.S.C. § 78aa” over claims involving extraterritorial activity—as the Supreme Court explicitly said it did—then the district court in Kiobel also should have “had jurisdiction under [the ATS]” over claims involving extraterritorial activity.

Having decided, correctly in my view, that the conduct-regulating rule under the ATS comes from international law, the Court essentially painted itself into a corner. It wanted to apply the presumption against extraterritoriality, but had only a jurisdictional statute left to construe. The problem with construing the ATS in light of the presumption (apart from the fact that the ATS was enacted well before the presumption ever came into existence) is there was no U.S. conduct-regulating rule to which the presumption could apply and the Court had just found the presumption inapplicable to a jurisdictional statute in Morrison. I tend to agree with those who have suggested that the Court in Kiobel was likely making a merits-based, rather than a subject matter jurisdiction, determination. But why be so cagey about this point? Morrison certainly wasn’t. Perhaps the reason is that Kiobel contradicts not only longstanding principles of U.S. and international law, but also the Court’s own most recent precedent on the presumption against extraterritoriality.

9 Responses

  1. This is the finest retort I have yet read on the Court’s ruling vis a vis the presumption.  Too bad, the Court does not hear motions to rehear.  Anthony, you have effectively shown the Court’s illogical position clearly and powerfully.
    I only add that the entire case is replete with bizarre markers.  Just look at the Kiobel second circuit ruling – the corp liability issue wasnt even before the 2nd Cir yet Cabranes used the argument to dismiss the case.  And the Sup Ct didnt rule on that primary issue but on the secondary one the Ct brought up by itself on extra-terr.  More strange is the fact that in Kiobel, the Ct seems to implicitly endorse corp liability.  So in effect Cabranes rationale was rejected – the Ct seems to endorse corp liability  – and used a completely different rationale to dismiss the case.  

  2. Kiobel is wrong is soooo many ways.  See also my Va. J. Int’l L. Digest on-line essay prior to the decision.  It is ahistorical in its focus, it ignores the plain text as supplemented by Charming Betsy, it ignores the import of congressional approval of the Filartiga line of cases, etc.  But it was 9-0 — worst court is U.S. history with respect to human rights!
    So now the U.S. is in serious violation of the UN Charter, the ICCPR, the CAT, the Am. Dec. Rts. and Duties of Man thru the OAS Charter, customary int’l law reflected therein, etc.  There should be serious effort to create new legislation that the Court cannot avoid, and the legislation should provide the right to a meaningful remedy for both U.S. and foreign victims of human rights violations and expressly affirm that it is meant to apply extraterritorially and without application of a judicially-created doctrine of forum non conveniens (or at least use a phrase re: forum non that is similar to that contained in the ATA, Sec. 2334).

  3. Thank you Anthony, SDNY Rules, and Jordan.  The deforming of US foreign relations law and the effort to denature international law that was in the Bush Administration is just now continuing outside of government. Our pathological inability to come to terms with that derapage has the Court appear to be in a kind of Stockholm Syndrome thrall that has now infected all 9 of them.  The retrograde forces achieved a great victory in Kiobel and its incoherence is because it sounds in power more than in law.

  4. As you point out, the Court framed the relevant question under the ATS as “whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.” You state that “the conduct-regulating rule under the statute comes from international law.” But while the rule may come from international law, under the court’s analysis its recognition implicates the lawmaking authority of the federal courts.  Right?
    The Court’s maneuver was to treat the recognition of the conduct-regulating rule as an elaboration of federal common law, albeit one that “comes from” international law (to what degree? that is an ongoing question). It then analogized federal common lawmaking to statutory law.
    I am not arguing whether it was correct to apply the presumption. I’m just trying to understand the moves the Court made to justify  its decision.

  5. Jordan Wells,
    Good question. Let me start by saying I really enjoyed your insightful post. I also think trying to figure out the moves the Court made, as you are doing, is probably way more productive than critiquing it, as I have done. Indeed I generally try to use my energy in the former way too. But this opinion was just so disappointing not only in result but also in its judicial craft that I found myself critiquing it instead of working toward clarifying and trying to bring coherence to the law as it now stands.
    To try to answer your question, it should not matter whether the international rule relies upon common law for its recognition in my view. The ATS invokes the law of nations, and that law as well as U.S. law have long been clear that it doesn’t matter how international law is recognized by/implemented in/translated to domestic law for prescriptive jurisdictional purposes, so long as the recognition of the rule is accurate (that is, the U.S. law accurately reflects the international law it implements). This relates back to the public and private international law principles I mentioned in my previous post and to my blogging at SCOTUSblog here:
    It may be that the Court was trying to apply the presumption to a common law creature of U.S. law here (which again, I think is error if the conduct-regulating rule comes from international law). But even if that’s so, at the very least the Court ought to have been more straightforward in acknowledging that it was inventing a brand new doctrine—the presumption is, after all, a canon of statutory construction. The Court’s cageyness in this respect invariably got it mired in construing the ATS, and its efforts resulted in a tortured (no pun intended) construction in light of not only principles of the law of nations the statute expressly invokes, but also its own most recent precedent.
    Should you continue to think about this, I invite you to email me if you would like to discuss these issues further after comments are closed colangelo [at] smu [dot] edu
    Anthony Colangelo    

  6. Whatever the cause of the cageyness, the result is that the Court’s analysis concerns only federal jurisdiction and does not reach issues of foreign relations law or constitutional personal jurisdiction–i.e., it does not hinder the raising of similar claims in state court.

  7. The basic premise of this piece (that the ATS is soley jurisdictional) is highly questionable.  If it were solely a jurisdictional statute, it would be largely indistinguishable form Section 1331 federal question jurisdiction.  But as Sosa explained, the First Congress adopted the ATS with the assumption that federal courts were common law courts and thus were authorized to exercise ATS jurisdiction to hear any one of the three “law of nations” torts commonly accepted in the 18th century (assaults on ambassadors, interference with safe passage, and piracy).  The Sosa Court was then faced with a problem:  because that underlying assumption is no longer true (i.e., ever since Erie, federal courts are not authorized to create their own common law), should Congress be presumed to have authorized federal courts to recognize any ATS torts beyond the initial three?  Sosa answered the question with a big “maybe” (the door was left ever-so-slightly ajar).  Without specifying precisely what additional torts (if any) could be recognized, the Court set limits beyond which the federal courts could not go.  The Court indicated that these additional torts (if any) would be some subset of customary international law, and it unanimously concluded that the claims raised by the plaintiff in Sosa were not included within that subset.  So despite what Sosa said about the ATS being a jurisdictional statute, it’s pretty clear that it was looking to congressional intent to determine what sort of causes of action were authorized by the statute.  If Sosa is understood in that light, Kiobel’s invocation of the presumption against extraterritoriality (as a means of discerning congressional intent) makes perfect sense.  One can disagree regarding whether the presumption is an accurate means of ascertaining 18th century congressional intent, but under the framework estsblished by Sosa, that intent (and not the scope of customary intrnational law) is the most relevant consideration. . . . Having said that, I agree completely with Daniel that the Supreme Court’s decision does nothing more than construe the meaning of a federal statute and says nothing about the power of state courts to recognize similar claims under their own common law jurisdiction.      

  8. Thanks for your comment, Richard. I agree that under Sosa courts have ability to recognize common law claims, but those claims derive from violations of “the law of nations” under Sosa and the ATS. And that law (a) comprises both substantive and jurisdictional components, (b) does not care how it is implemented in domestic law for prescriptive jurisdiction purposes and (c) traditionally delegated to the forum whether and how to craft the cause of action.
    To your point about intent, those who drafted the ATS were intimately familiar with these features when they expressly invoked the law of nations – as evidenced by, among other things, similar contemporaneous invocations of the law of nations to confer universal jurisdiction over piracy. Why take a judicially invented presumption that came into existence twenty years after the ATS was enacted and project it backward in time, as opposed to what case law and intervening congressional reaction thereto clearly suggest. I don’t disagree with your description of Sosa itself; the Court’s reasoning is largely a quirk of our jurisprudential history in light of Erie. But I do find the Court’s application of the presumption problematic under both U.S. law and the international law it invokes. As to whether Kiobel contradicts Morrison, I’d just reiterate that the presumption could not perform its usual work because the relevant conduct-regulating rule comes from international law and thus already applied when and where the activity underlying the claim arose. The Court thus had to apply the presumption to what everyone agrees is a jurisdictional statute, and that application does indeed contradict the Court’s explicit refusal to apply the presumption to a jurisdictional statute in Morrison. I’ve decided to include most of these points in a symposium essay here if you are interested:

  9. Response…YOu may want to follow US v Ross Mandell and Adam Harrington out of SDNY – Their ruling will come out shortly by the second circuit as well as US v. Alberto Vilar- both of which extrateritoriality and Morrison play a big role. I believe these cases will set a precident for the future.

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