In case you missed it, the US Supreme Court ruled on Kiobel v. Royal Dutch Petroleum affirming the Second Circuit Court of Appeals' dismissal. We have an insta-symposium (scroll down to related links to see all posts so far) going on with contributions from many prominent voices. As Roger noted yesterday, if you'd like to post on Kiobel, please contact us. SCOTUS Blog also...
[Chimène Keitner is Professor of Law, University of California Hastings College of the Law.] The Kiobel majority concludes that the plaintiffs in that case impermissibly sought to extend a U.S. cause of action to foreign conduct by foreign companies against foreign victims (even though the victims subsequently became lawful U.S. residents). It dismisses the historical practice of allowing suits for transitory torts (which I have explored in more detail here) by reasoning that the cause of action...
[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...
The ATS as we know it is dead. I predicted as much in October, but I was uncertain whether the Supreme Court would deliver a mortal blow and by what means it would deliver it. Now we know. The presumption against extraterritoriality, combined with a narrow interpretation of territoriality, means that the Filartiga human rights revolution is...
[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...
[Thomas H. Lee is the Leitner Family Professor of Law at Fordham Law School and a Visiting Professor of Law at Harvard Law School in 2012-13.] Based on my quick read through the opinions, it seems that it’s a win for corporations and a loss for international human rights groups seeking to use the US federal district courts to vindicate claims of...
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...
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...
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...
[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...
Interestingly, the four liberal justices would have also dismissed the Kiobel plaintiffs on a different theory: that this case (involving actions by a foreign corporation against foreign plaintiffs in a foreign sovereign's territory) does not "substantially or adversely affect an important American national interest...
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...
