With the steady stream of posts on Kiobel in the past 24 hours, you may have lost track of it all. So here is a little insta-roudup with links to all the posts we've had so far (there'll be more in the regular roundup on Saturday). To start, you can find the opinions here. Julian posted on Roberts' opinion, Kennedy's concurrence (as did...
[Christopher A. Whytock is a Professor of Law and Political Science at UC Irvine School of Law] I do not think the Court’s opinion in Kiobel means that ATS litigation in federal courts is going away any time soon. First, make no mistake, the “presumption against extraterritoriality” applied by the Court in Kiobel is a new creation that is likely to give rise to...
[Dr. Alex Mills is a Lecturer in the Faculty of Laws at University College London.] Although the Kiobel Court finds unanimously for the respondents, it is nevertheless predictably split (between the opinion of the Court, written by Chief Justice Roberts, and the concurrence led by Justice Breyer) when it comes to the reasons underlying that decision. One way of characterising this...
[Mike Koehler is an Assistant Professor of Law at Southern Illinois University School of Law and the author of the FCPA Professor website. This contribution is cross-posted on Professor Koehler’s site.] Yesterday, the Supreme Court released its long-awaited opinion in Kiobel v. Royal Dutch Shell Petroleum. The precise issue before the court was “whether and under what circumstances courts may recognize a cause...
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...
