At first glance, the Court’s decision in Kiobel appears to portend a significant restriction on Alien Tort Statute jurisdiction—even for suits that allege torture, genocide, or another of what the Court in Sosa called the “modest number of international law violations” cognizable under the ATS, those with “definite content and acceptance among civilized nations” equal to that of the “historical paradigms” (such as piracy and violation of safe conducts) familiar in 1789.

And perhaps that will, indeed, be Kiobel’s legacy.  But perhaps not.  What’s most striking about the collected opinions is that the Justices themselves apparently do not think the decision will necessarily cut off ATS claims in such a comprehensive manner.  Justice Kennedy writes that the decision “leave[s] open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute”; and even Justices Alito and Thomas acknowledge, with evident regret, that the Court’s opinion “obviously leaves much unanswered” (emphasis added).

What is the “much” that the Court does not answer?  The “number” of “significant” questions that remain unresolved?  If only it were as “obvious[]” as Justice Alito suggests.

To begin with, what legal propositions is it fair to say the Kiobel decision does establish?  Well, it is now settled that where the alleged conduct in question occurred wholly abroad, the mere fact that a corporate defendant has an office in the United States and shares that are traded on a U.S. exchange is insufficient to establish ATS jurisdiction, unless and until Congress amends the statute.  (All nine Justices agree that this is the case where only aiding and abetting is alleged; and I think it’s safe to say that a majority would rule the same way even where the defendant corporation is alleged to be the principal tortfeasor.)

By contrast, all nine Justices agree that there is ATS jurisdiction when, in Justice Alito’s words, “the domestic conduct is sufficient to violate an international law norm that satisfies Sosa’s requirements of definiteness and acceptance among civilized nations.”

But what about cases falling somewhere in between these polar ends?

Tom Lee describes some hypothetical cases that might not be covered by the Kiobel holding, such as where the conduct occurred in a “failed state”; but I doubt such rare hypotheticals are what the Justices had foremost in mind.  (It’s hard to imagine these are the “significant” questions that the decision “obviously” does not answer.)

I can think of at least three more familiar types of cases that the Justices might have had in mind as those that remain “unresolved” by Kiobel:

(i) Cases alleging Sosa-sufficient torts committed overseas by U.S. defendants;

(ii) Cases such as Filartiga, where a foreign defendant uses the U.S. as an effective “safe harbor,” thereby preventing other states from bringing him to justice;

and

(iii) Cases in which the defendant is alleged to have engaged in conduct in the United States that contributed materially to the violation of a Sosa-sufficient law of nations norm (such as providing active assistance to torture), but where that conduct in the U.S. was not itself sufficient to establish the violation.  (I am not including in this category cases alleging aiding and abetting predicated solely on knowledge by a U.S. corporation of a foreign subsidiary’s bad acts.  Although even that case is not technically resolved by Kiobel, I think it’s safe to predict the Court would not recognize such a claim, most likely on the theory that such general knowledge, and failure to stop the tort, does not satisfy the scienter requirement for a Sosa-qualified claim.)

We can say with some confidence that at least four current Justices (Breyer, Ginsburg, Sotomayor and Kagan) would recognize ATS jurisdiction in many or all cases in these three categories . . . and that, by contrast, two Justices (Alito and Thomas) would not.  What we do not know is whether and in what circumstances one or more of the other three Justices — or future Justices — would recognize ATS jurisdiction in such cases.

The question going forward, then, is whether such claims can satisfy the standard the Chief Justice articulates in the key, final paragraph of the Court’s opinion:  Do they “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application”?

(more…)

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 Deborah) and Breyer’s concurrence. He also provided his quick take and discussed the end of universal civil jurisdiction. Looking at the future, Peter wrote on how human rights will survive Kiobel and Roger on the rise of transnational tort litigation.

We also have a series of guest posts by Thomas Lee, Anthony Colangelo, John Knox, Chimène Keitner, Mike Koehler, Alex Mills and Chris Whytock.

There is more to come, and remember, we welcome unsolicited submissions by young academics who wish to contribute to our insta-symposium.

And if you want to refresh your memory, the posts from our roundtable when Kiobel was reargued in October 2012 can be found here.

[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 further litigation.  In at least three ways, the new presumption is different from the Morrison-style presumption used by the Court to determine whether a federal statute applies abroad: (1) the coverage of the new presumption is different (it covers recognition of causes of action under the ATS), (2) the new presumption can be overcome on grounds not available for the Morrison version of the presumption (e.g., if “the claims touch and concern the territory of the United States . . . with sufficient force to displace the presumption”), and (3) a case-by-case analysis seems necessary to determine whether the new presumption is displaced (see my comments on Tom Lee’s earlier post).  I agree with Anthony Colangelo that the creation of this new presumption is a bit of a “strange move,” and I think it creates more problems than it solves (as evident in the analytical tension I pointed out between Parts III and IV of Chief Justice Roberts’ opinion).  These problems may take many more years of federal ATS litigation to figure out.

Second, the door still appears open for ATS claims against U.S. corporations and other defendants with sufficient presence to subject them to general jurisdiction under Goodyear v. Brown (decided after the Kiobel case was originally filed), even when the claims arise out of extraterritorial conduct (see my comments on Julian Ku’s earlier post).

That said, the Kiobel decision obviously imposes significant new limits on ATS litigation in the federal courts.  I therefore agree with Roger Alford (and with Trey Childress) that there may be a new wave of human rights litigation in U.S. state courts in the form of transnational tort claims.  Roger’s post does an excellent job outlining the attractions of the state court transnational tort approach.  And, as Paul Hoffman and Beth Stephens remind us in a recent article, human rights claims have been litigated in state courts for decades.

But there are also potential barriers to this approach, which Trey, Michael Ramsey, and I discuss in After Kiobel: International Human Rights Litigation in State Courts and Under State Law, our foreword to a special issue of the UC Irvine Law Review on Human Rights Litigation in State Courts and Under State Law that just came out:

• Personal Jurisdiction: In Goodyear v. Brown, decided in 2011, the Supreme Court limited the scope of general jurisdiction over corporate defendants.  This limitation is as much of a barrier in state courts as in federal courts.
• Immunity and Act of State Doctrine: Foreign sovereign immunity and the act of state doctrine likewise impose limits in state courts as well as federal courts.
• Removal: A defendant sued in state court may be able to remove the case to federal court.
• State Forum Non Conveniens Doctrines: States have their own versions of the forum non conveniens doctrine that defendants can and do rely upon to seek dismissal of transnational tort claims.
• Preemption: Federal foreign affairs preemption and other constitutional limits on state involvement in international matters may also pose barriers to human rights litigation in state courts and under state law—potentially even if styled as transnational tort claims.

As Roger notes, another issue is choice of law.  Different states use different choice-of-law methods to determine whether domestic law or foreign law provides the rule of decision in transnational tort cases.  Traditionally, American courts applied

[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 split is as a competition between two presumptions (as also noted previously by Anthony Colangelo and John H Knox in this ‘Insta-Symposium’).

The first, the apparent foundation of the opinion of the Court in Kiobel, is the application to the Alien Tort Statute of the ‘presumption against extraterritoriality’, most recently articulated by the Supreme Court in its 2010 Morrison decision. The opinion of the Court finds that the presumption “applies to claims under the ATS, and that nothing in the statute rebuts that presumption” (p.13). On this basis the ATS is determined (as discussed further below) not to apply to the facts of Kiobel, in which “all the relevant conduct took place outside the United States” (p.14), and the only connection with the United States was the “mere corporate presence” (p.14) of the respondents.

The second, which finds a more implicit support in the Breyer concurrence, is the presumption against breach of international law – often known as the ‘Charming Betsy’ doctrine after the 1804 Supreme Court decision. One particular application of this presumption is that statutes should be interpreted not to violate international law’s jurisdictional rules (this has thus been called the ‘presumption against extra-jurisdictionality’) – that is, that statutes should be presumed only to assert prescriptive jurisdiction where that assertion would be acceptable under international law. These include not only assertions of jurisdiction over conduct within a State’s own territory, but also over conduct of its nationals wherever occurring, in protection of its nationals wherever located, and in protection of a State’s essential national interests. As discussed further below, these criteria are readily (if slightly roughly) recognisable as the limitations which Justice Breyer et al would apply to the ATS – under their approach the ATS is thus interpreted as constrained by these recognised jurisdictional grounds under international law.

So why should one of these presumptions be adopted over the other? If the concern is avoidance of “unintended clashes between our laws and those of other nations which could result in international discord” (Roberts opinion, p.4, quoting EEOC v. Arabian American Oil Co), then clearly the presumption against extraterritoriality is the more cautious option. It is simply true that US law is less likely to conflict with the law of foreign States if it does not purport to regulate events outside US territory. But there is a self-denialism in such restraint, curiously difficult to reconcile with the US history of expansive interpretation of international law’s extraterritorial jurisdictional rules (most notably through the effects doctrine). Many States exercise jurisdiction on the basis of the nationality or protective principles, including over conduct occurring in the United States, and US restraint in exercising such jurisdiction hardly seems likely to persuade other States not to exercise their rights. The fact that these jurisdictional grounds are accepted in international law also means that States have implicitly accepted a limited possibility of regulatory conflict – making a collective policy decision that the potential for conflict in overlapping regulation is outweighed by its benefits. A broadly-applied presumption against extraterritoriality presumes (in the absence of indications to the contrary) that Congress does not wish to exercise regulatory power which it is widely agreed that Congress can exercise as a matter of US and international law. This is a highly debatable presumption – indeed, if one overriding policy concern here is “the danger of unwarranted judicial interference in the conduct of foreign policy” (p.5), this seems ironically like the Supreme Court attributing (or even dictating) a foreign policy conservatism to Congress.

But there is a perhaps even more significant issue with the Roberts approach, which is what it leaves undecided – as noted particularly in Justice Kennedy’s pivotal concurrence, as well as the Breyer opinion. While Part III of the Roberts opinion appears to argue that the ATS must conclusively be interpreted as not applying extraterritorially, Part IV appears to take a critical step ‘backward’ in concluding that it is only the facts of this case which are not subject to the ATS, providing only that where other claims “touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application” (p.14). Despite initial appearances, the ATS has thus not definitively been interpreted to have no extraterritorial effect, but rather, it has only been interpreted as not extending extraterritorially in the circumstances of Kiobel – that is, to purely extraterritorial ‘foreign cubed’ cases. This is not a presumption against any extraterritoriality, but only a presumption against total extraterritoriality. As the Breyer opinion notes, the Roberts opinion’s reliance on the presumption against extraterritoriality “offers only limited help” (p.5) in interpreting the ATS, and “leaves for another day” (p.6) the question of when the ATS might nevertheless have some extraterritorial effect, and subject to what limits.

One possible source for these guidelines remains, of course, the Charming Betsy doctrine, and its presumption of compliance with international law’s jurisdictional limitations. Thus, the ATS might still properly be interpreted as applying not only to events in US territory, but also to the conduct of US ‘nationals’ (which may extend not only to US companies but also

[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 of action under the Alien Tort Statute (“ATS”), for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

The opinion, authored by Chief Justice Roberts, holds that “the presumption against exterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.”

Accordingly, the court in a unanimous opinion (several justices authored concurring opinions) affirmed the Second Circuit’s dismissal of a lawsuit brought by a group of Nigerian nationals residing in the United State who filed suit in federal court against certain Dutch, British, and Nigerian corporations, alleging that the corporations aided and abetted the Nigerian government in committing violations of the law of nations in Nigeria.

This post analyzes the impact of Kiobel on FCPA enforcement.

While the ATS and Foreign Corrupt Practices Act are separated by 188 years in terms of enactment, the statutes have often being viewed by some as siblings, or at least distant cousins within the same family.

However, it is important to grasp that the ATS and FCPA are very different statutes in very material ways.

The jurisdictional issue the Supreme Court addressed in Kiobel - whether the canon of statutory interpretation known as the presumption against extraterritorial application – was necessitated because the ATS was silent on the jurisdiction issue. Indeed, Chief Justice Roberts stated that the canon “provides that when a statute gives no clear indication of an extraterritorial application it has none” (emphasis added).

In contrast, the FCPA is explicit as to its jurisdictional scope and provides as follows depending on the category of person (legal or natural) subject to the law’s anti-bribery provisions.

As to U.S. persons (legal or natural) the FCPA provides for two types of jurisdictional. The original statutory standard was (and is still part of the law) “use of the mails or any means of instrumentality of interstate commerce corruptly in furtherance” of a bribery scheme. However, in 1998 Congress amended the FCPA to also provide for so-called nationality jurisdiction as to U.S. persons. 15 USC 78dd-1(g) and 78dd-2(i) specifically state, in pertinent part, as follows: “It shall also be unlawful for [any issuer organized under the laws of the United States or for any United States person] to corruptly do any act outside the United States in furtherance [of a bribery scheme] irrespective of whether such [U.S. person] makes uses of the mails or any means or instrumentality of interstate commerce in furtherance [of the bribery scheme]. In short, as to U.S. persons, in 1998 Congress explicitly amended the FCPA to provide for extraterritorial jurisdiction thus negating the need for reference to the canon of statutory interpretation at issue in Kiobel.

As to foreign issuers subject to 78dd-1 of the FCPA (i.e. foreign companies with shares registered on U.S. exchanges or otherwise required to file periodic reports with the SEC), the 1998 amendment found in 78dd-1(g) did not apply to such companies. It can thus be inferred that Congress did not intend for the extraterritorial provisions of the 1998 amendments to apply to such entities. Here again, the need for the canon of statutory interpretation at issue in Kiobel is negated. For such foreign issuers, the FCPA explicitly provides only territorial jurisdiction as stated above.

As to persons other than U.S. persons (legal or natural) or foreign issuers, the FCPA was also amended in 1998 to create an entire new category of “person” subject to the FCPA’s anti-bribery provisions. See 78dd-3. This category applies to non-U.S. actors and non-foreign issuers such as foreign private companies and foreign nationals. This FCPA prong has explicit jurisdictional provisions. 78dd-3(a) states, in pertinent part, that it shall be unlawful for “any person” other than an issuer or domestic concern (that is a U.S. “person”) ”while in the territory of the United States, corruptly to make use of the mails or any means or instrumentality of interstate commerce or to do any other act in furtherance [of a bribery scheme.” Here again, because the FCPA is explicit, the need for the canon of statutory interpretation at issue in Kiobel is negated.

Just because the canon of statutory interpretation at issue in Kiobel is not directly applicable to the FCPA, it does not follow that Kiobel will not have…

[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 in ATS cases comes from U.S. law, not foreign or international law (the latter of which does not provide “causes of action” as such). As the first part of the majority’s opinion acknowledges, the presumption against extraterritoriality cannot apply in a literal fashion to the ATS, because the statute is “strictly jurisdictional.” The majority opinion deals with the hybrid quality of ATS claims (which translate certain clearly defined international norms into federal common law causes of action) by treating ATS claims like any other claim brought under a federal statute. This departs from the majority’s approach in Sosa, which took the more nuanced position that federal courts do not “lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism.” Under Kiobel, federal courts have not lost “all” such capacity, but they appear to have lost much of it, contrary to what the Sosa majority believed was the intention of the First Congress, and contrary to the (in my view) more conceptually defensible approach in Justice Breyer’s concurrence, which has also been endorsed by Anthony Colangelo and John Knox in this OJ symposium.

The majority’s “narrow approach” leaves a number of specific questions open, but it also resolves a few broader issues that are likely to arise in future cases. Under the majority’s reasoning, there should be no Article III problem with remaining ATS suits, because the ATS applies (and thus “arises under”) federal law. It follows that U.S. law will govern various aspects of the claim, including the standard for accomplice liability (i.e., knowledge), and the availability of corporate liability and punitive damages. In that sense, the Kiobel decision has left us with a geographically truncated, but perhaps substantively more robust, ATS. ATS claims (including those against foreign defendants that, in Justice Kennedy’s words, are “covered neither by the TVPA nor by the reasoning and holding of today’s case”) may be brought against individuals and against corporations, where there is a greater connection to the forum than the defendant’s “mere corporate presence” in the United States. Several such claims are currently making their way through the appellate courts.

[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 refusal to allow ATS suits for torts beyond U.S. territory is likely to result in the dismissal of most ATS litigation.  The concurrence’s approach would allow the great majority of pending ATS suits to continue, as long as they did not extend beyond certain accepted bases for legislative jurisdiction under international law.  (Justice Breyer specifies the two most important bases, territory and nationality, and adds a third – a substantial and adverse effect on “an important American national interest” – that would appear to include not only protective jurisdiction and some types of jurisdiction based on effects, but also, as he makes clear, universal jurisdiction for a limited set of crimes constituting the modern equivalents of piracy, such as torture and genocide.)

As Anthony says, the Breyer concurrence more or less adopts his suggestion, which is to use international principles of jurisdiction in interpreting laws “designed to implement international substantive law,” such as the ATS.  I think that the Breyer concurrence ’s approach is also consistent with a more general use of the presumption against extrajurisdictionality in interpreting all federal laws, which I described three years ago in the AJIL.  Kiobel again illustrates the superiority of a canon linked to international jurisdictional norms to one based on a strict presumption against extraterritoriality.

Although the presumption against extraterritoriality has become the more commonly cited canon, the presumption against extrajurisdictionality is the one with the longer history.  An early offshoot of the Charming Betsy canon, it emerged in the piracy cases of the early nineteenth century (such as United States v Palmer) that are now erroneously cited as the first uses of the presumption against extraterritoriality.  The presumption against extraterritoriality branched off from the earlier presumption in the twentieth century, and attained its current pride of place only after being promoted by the conservative justices on the Supreme Court in a series of decisions since the late 1980s.  Over the same period, the presumption against extrajurisdictionality was reduced to lurking in the margins of Supreme Court opinions.

It deserves greater attention.  Two of the Court’s principal justifications for the presumption against extraterritoriality are predictability (which it cited in Morrison in 2010) and the avoidance of foreign conflicts (cited in Kiobel).  But predictability is obviously not served by overturning decades of settled jurisprudence from federal appellate courts, as the Court has now done for the second time in three years.  And while foreign governments may well be uneasy about assertions of universal civil jurisdiction for all human rights violations, there is no reason to believe that the concurrence’s limited bases for jurisdiction in accordance with international law would cause the same types of problems.

Let’s be clear:  the real motivation underlying the Court’s use of the presumption against extraterritoriality is the conservative justices’ dislike of the aggressive use of federal law, which the presumption gives them a convenient tool to restrict.  The concurring opinion shows that there is another approach, one that I hope a future Court will follow in construing the ATS and, beyond that, other federal laws.   

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 essentially over. Other posts this week will discuss whether the ATS has a future after Kiobel, but that is simply a search for a silver lining in what is, for plaintiffs, otherwise a dark and ominous thunderstorm that has destroyed an entire cottage industry.

What now? Obviously there is the Torture Victim Protection Act (TVPA), which may be sufficient for some causes of action. But per Mohamed v. Palestinian Authority, such causes of action are only available against natural persons. No corporate claims may be brought under the TVPA, and claims against corporate officers will struggle to overcome the Iqbal/Twombly pleading standards.

Others will argue that the ATS survives as long as there is some territorial nexus. This may mean that the old American Banana and Sisal Sales standard applied in the antitrust context is now applicable to human rights litigation. The search is on for some constituent act that occurred within the forum to satisfy the territorial nexus. But if territoriality is the new standard, why rely on international law instead of a panoply of more favorable domestic laws that capture the same conduct? And if Alito’s standard for territoriality is required, then the constituent territorial act must violate an international law norm. Good luck finding that conduct.

More promising than these options is transnational tort litigation. As I discuss in a forthcoming article (now more relevant than ever) and as Trey Childress discusses here and a recent Irvine Law Review symposium features here, the future of human rights in domestic courts is transnational tort litigation. Torture is assault and battery. Terrorism is wrongful death. Slavery is false imprisonment. In the quest to provide relief for victims of grave abuse, international human rights violations will now be reframed as transnational torts. Virtually every complaint pleading an ATS violation could allege a traditional domestic or foreign tort. Indeed, many complaints routinely add pendent state tort claims. In the Kiobel oral argument, both Kathleen Sullivan and Paul Hoffman concede the availability of state tort claims in lieu of ATS litigation.

What does this mean in practice? Now more than ever, human rights lawyers must become experts on choice of law and comparative tort law. It is a trend that already has been applied for over a decade in the terrorism context, but no one has been paying attention. Pursuant to the FSIA’s Flatow amendment, victims of international terrorism have secured billions (yes billions) of dollars in judgments against state sponsors of terrorism. They typically have done so by invoking choice of law principles to apply domestic tort laws to redress foreign terrorist attacks. In most cases the state tort law of the decedents’ domiciliary has controlled. Thus, when a suicide bomber kills Americans in Israel, or Lebanon, or Nigeria, it is Illinois, Louisiana, or Nebraska law that is applied to hold the perpetrators accountable.

Going forward, human rights lawyers must consider whether choice-of-law standards of the several states will authorize recourse to state or foreign tort laws. That means forum shopping with an eye toward choice of law. Is it better to sue in a “most significant relationship” jurisdiction (e.g., Texas, Florida), a “government interest” jurisdiction (e.g., District of Columbia, California), a lex fori jurisdiction (e.g., Michigan, Kentucky), a lex loci delicti jurisdiction (e.g., Virginia, Maryland), a “better law” jurisdiction (e.g., Minnesota, New Hampshire), or a jurisdiction that adopts an eclectic approach (e.g., New York, Pennsylvania). Who knows, for it will depend on the facts of each case. In some cases (i.e., terrorist attacks in Israel), foreign tort laws may be preferable to state tort laws. In other cases (i.e., torture and killings in Burma), domestic tort laws will be far preferable to foreign laws. If I were a law student who aspired to become a human rights lawyer, after today I would be enrolling in courses that teach conflict of laws and comparative torts.

What does a choice-of-law analysis for human rights abuses typically mean? More often than not, it means the application of foreign tort laws. That is to say, if one analyzes the major choice-of-law approaches and applies them to the facts of prominent human rights cases, courts will typically apply foreign tort laws to resolve claims alleging foreign conduct that causes foreign injuries. Under the specific facts of Kiobel, for example, a state court would apply Nigerian, English, or Dutch law under every choice-of-law approach.

Lest one think that transnational tort litigation is a poor second to ATS litigation, it is fairly clear that this option has numerous advantages over the alternatives. First, tort laws are almost universal. According to the International Commission of Jurists, “[i]n every jurisdiction, despite differences in terminology and approach, an actor may be held liable under the law of civil remedies if through negligent or intentional conduct it causes harm to someone else.” Assuming a fair and impartial adjudicator, remedies for harm to life and liberty are part of public and private laws throughout the civilized world. To the extent a foreign country does not have effective tort laws, then a choice of law public policy exception may result in the application of domestic tort laws.

Second, transnational torts have much lower thresholds than the standards applied under international law, allowing claims to be brought for intentional torts, simple negligence, strict products liability, or any other harmful or offensive conduct that constitutes a legal wrong. Human rights litigation is about grave public wrongs; transnational tort litigation is about redressing simple private wrongs. If the choice is between proving simple negligence instead of a paradigmatic international law violation with a territorial nexus, which would you prefer? For most plaintiffs, it’s not a hard choice.

Third, corporate accessorial liability for aiding and abetting human rights abuse is largely irrelevant when pursuing claims for transnational torts (a question left unresolved in Kiobel with respect to international law). Establishing that a corporate defendant aided and abetted government abuse with the requisite intent is likewise irrelevant. What matters is whether the defendant knew or should have known that its conduct would cause harm. If so, under most jurisdictions of the world a corporation is liable.

Fourth, pleading a violation of transnational torts in most state courts may avoid heightened federal pleading standards. The notice pleading standard applied in the majority of state courts is that a complaint should not be dismissed for failure to state a claim unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Pursuing state law tort claims in state courts is more likely to overcome a motion to dismiss than if the same claim were filed in federal court. Thus, plaintiffs struggling with the heightened federal pleading standard of Iqbal and Twombly may wish to pursue state tort law claims in state court, and file in the defendant’s home state to avoid removal to federal court on diversity grounds.

Fifth, forum non conveniens does not have the same force or favor in state courts as in federal courts. Moreover, after the $18 billion Chevron debacle in Ecuador and Chevron’s huge victory in Bowoto, it is unclear whether corporations will remain as enthusiastic about foreign court litigation or as skittish about domestic court litigation as they have in the past. Many defendants may surmise that it is better to fight in state court rather than gamble with the vagaries and corruption common in many foreign courts.

Sixth, under almost every choice-of-law approach, concerns for international comity and foreign sovereign interests are built into the analysis. For example, under the approach adopted by most states, the needs of the international system and the policies of other interested states are part and parcel of the choice-of-law determination. The sovereignty concerns expressed in Kiobel are built into the system, and often result in the application of foreign laws.

Seventh, state tort laws may apply extraterritorially. As noted, typically this is done on a case-by-case basis after the full implications for such application are taken into account. Thus, virtually every terrorism case pursuant to the Flatow amendment did just that, with the paramount government interest in combatting terrorism trumping foreign interests. Think back to the major foreign terrorism events of recent decades: Khobar Towers, Beirut barracks, USS Cole, Jerusalem bus bombings, African embassy bombings. All resulted in the application of domestic wrongful death tort laws based on the domicile of the decedent victim.

There’s more I could say, but you get the idea. Transnational tort litigation cannot replace the old version of ATS litigation. But after Kiobel, human rights lawyers have precious few alternatives. If there is a silver lining to Kiobel, it is that human rights lawyers will wake up to what transnational tort litigation has to offer.

[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 (as opposed to conduct regulating rules).

First, I must say I’m sorry to see Justice Breyer’s view that “just as we have looked to established international substantive norms to help determine the statute’s substantive reach, so we should look to international jurisdictional norms to help determine the statute’s jurisdictional scope” did not command a majority. This is more or less the argument I laid out in an article in the Virginia Law Review in 2011, where I argued “when Congress enacts a statute silent on geographic scope designed to implement international substantive law, courts should construe that statute in line with international jurisdictional law, including attendant principles of extraterritorial jurisdiction.”

History and precedent support this view as to the ATS. As Breyer’s opinion points out, piracy took place on other nations’ ships, and those vessels were clearly considered foreign territory in early Supreme Court case law. Moreover, as Tony D’Amato and I pointed out in our amicus brief in Kiobel, the way Congress overturned application of a judicially imposed presumption against extraterritoriality to U.S. law outlawing piracy was to revise the definition to confer jurisdiction over piracy, “as defined by the law of nations.” That is, Congress explicitly invoked the law of nations—and its jurisdictional principles—to grant universal jurisdiction over, and to reject a judicially imposed presumption against extraterritoriality to, piracy on foreign ships (which, again, were considered the territories of foreign nations). The ATS contains this same invocation of “the law of nations,” which comprises both substantive and jurisdictional components. That ought to be enough to dispose of the presumption given this precedent.

It is also worth mentioning that the Kiobel Court’s assurances that Congress would have included a “clear indication of extraterritoriality” had it wanted the ATS to apply to causes of action arising abroad simply makes no sense in light of the fact that the statute was enacted in 1789, and the earliest manifestation of a judicially invented presumption against extraterritoriality came about in 1818—and in a piracy case no less!—United States v. Palmer.

Next, I want to critique what seems to me a strange move in extending the presumption against extraterritoriality to causes of action. The Court begins by noting that the presumption typically applies to conduct regulating rules, then acknowledges that 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.” But the Court then extends the presumption to “constrain courts considering causes of action that may be brought under the ATS.” This is weird.

To begin with, as the Court acknowledges, the presumption has traditionally applied to U.S. prescriptive jurisdiction, or jurisdiction to prescribe rules of conduct. But that rationale can’t apply to the ATS, since the conduct regulating rule is international law, and whether that conduct regulating rule is deemed the direct or indirect application of international law via common law doesn’t matter. All that matters from a prescriptive jurisdiction perspective is that the rule applied accurately reflects substantive international law, including as to liability. If it does, there is no concern about extraterritoriality, as the Court seems to accept: “The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provided by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.”

Thus the Court seizes upon the cause of action as the relevant creature of U.S. law to which the presumption applies. The problem is that under longstanding principles of private international law—which is, and has been since the founding, part of “the law of nations”—causes of action are creatures of forum law, or the lex fori. A presumption against extraterritoriality doesn’t apply to causes of action because, simply put, they aren’t extraterritorial. This is the whole basis for the traditional approach to conflict of laws under which the forum crafts causes of action to allow foreigners to sue under foreign laws. It may be true that, generally speaking, the forum will not create a cause of action if there is no cause of action under the law of the place of the tort. And here the Court in Kiobel cites Justice Holmes’ opinion in Cuba R. Co. v. Crosby. But at the very least, this would require some evaluation of whether the lex loci delicti provides a cause of action for, among other things, extrajudicial killing, crimes against humanity, torture, and arbitrary arrest and detention. At most, we might even take Holmes’ opinion in Crosby at its word. There, the Court explained that when dealing with torts that “are likely to impose an obligation in all civilized countries . . . [U.S.] courts would assume a liability to exist if nothing to the contrary appeared.” Thus in such cases, the burden is on the defendant to show no liability under the law of the place of the harm. And if nothing else, universal jurisdiction stands for the proposition that there are some acts that “impose an obligation in all civilized countries.”

In sum, the Court’s extension of the presumption against extraterritoriality to causes of action is both conceptually mistaken and doctrinally unsupported under longstanding principles of the law of nations.

[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 customary international law violations outside of the United States, in other foreign sovereign territories.  The principal rationale was that there was not enough here to rebut the presumption against extraterritoriality, most recently articulated in Morrison v. National Australia Bank.

The big question going forward will be the circumstances in which the presumption might be rebutted. One possibility clued in by the majority’s discussion of the 1794 Bradford opinion (page 12) is where there is a treaty provision in play which the US has ratified, even though that treaty might not be viewed as “self executing.”  For instance, torture under the Torture Convention brought by an alien, as opposed to a US citizen under the TVPA.

Another might be an instance where there is US sovereign complicity in the violation outside of the territorial United States, for instance, where a US or alien subcontractor, acting under U.S. governmental authority or authorization, has violated specific, universal, and obligatory customary international law norms (e.g., Common Article III) by enhanced interrogation techniques employed against an alien plaintiff in a foreign sovereign territory.

Finally, perhaps, as with piracy on the high seas, ATS claims may be possible in terra nullius circumstances, such as where acts have occurred in failed states.

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 to include new voices. So if you want to write a guest post for Opinio Juris about Kiobel of approximately 500 to 1500 words, please do so in the next couple days and send it to Jessica Dorsey and An Hertogen (their emails are linked to the right). Our editorial team will review the posts and publish as many as we deem appropriate.

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 universally proscribable crime (see here for Donald Donovan and Anthea Roberts’ take on this).   The Court seemed to take this idea pretty seriously in Sosa v. Alvarez-Machain.  At least, Justice Breyer seemed to do so in his concurrence to that decision.

That concurrence hinted that Justice Breyer was untroubled by ATS cases which satisfied the international standards of universal jurisdiction because such cases would be unlikely to cause friction with foreign governments. Here is Justice Breyer back in 2004.

…[R]ecognition of universal jurisdiction in respect to a limited set of norms is consistent with principles of international comity. That is, allowing every nation’s courts to adjudicate foreign conduct involving foreign parties in such cases will not significantly threaten the practical harmony that comity principles seek to protect. That consensus concerns criminal jurisdiction, but consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening. Cf. Restatement §404, Comment b. That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself. [citation omitted] Thus, universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well. 

Indeed, Sosa could have been read as a universal civil jurisdiction decision, although it was grounded in U.S. historical analysis that seemed to coincide with universal civil jurisdiction.  Still, as I noted before, Justice Breyer did not build on the Sosa concurrence in today’s Kiobel opinion.  Instead, he revived the quite rarely invoked “protective” principle to justify the ATS’ extraterritorial reach.  He then added that preventing war criminals from winning a “safe harbor” in the U.S. was within the protective principle (that’s a somewhat dubious interpretation to me).  This is a much narrower approach than I would have expected from his Sosa concurrence.

Indeed, I am somewhat surprised that this narrower Breyer approach, which would still have knocked out most ATS corporate lawsuits, did not manage to win Justice Kennedy’s vote. It certainly looks like it was designed to do so.  But having lost Kennedy, I guess Breyer figured he would simply go forward anyway with his narrower concurrence.  But this also means that the idea of “universal civil jurisdiction” under the ATS, both as a matter of law but also as a matter of justifying the ATS on policy grounds, is dead.  The heinousness of the crime alleged is not as important as identifying a distinctly American interest in the case. This really shifts the ground in the ATS public relations wars, and will be much harder for the ATS advocates to overcome.