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Into the Deference Weeds in Kiobel

Rather than dwelling further on any prediction of what kind of opinion the Court is likely to produce following oral arguments in Kiobel (FWIW, I thought arguments went better for plaintiffs than I’d anticipated), I wanted to highlight what I thought was a particularly interesting exchange on whether the State Department’s views on the ATS were entitled to some deference by the Court. Background first. I’d read the U.S. Government’s latest brief as arguing for something like a case-by-case approach on the question of which extraterritorial ATS cases might be appropriate for federal adjudication. In the U.S. view, Filartiga (involving Paraguayan parties disputing the legality of conduct in Paraguay) presents a paradigmatic example of the kind of ATS suit that would be permissible, while Kiobel (involving non-U.S. multinational parties disputing the legality of conduct in Nigeria) presents a contrary example. The distinction between the cases, on this view, seems to turn on a combination of factors, including, but not limited to, the defendant’s presence in the United States (favoring jurisdiction in Filartiga), and the nature of the claim of aiding and abetting a foreign sovereign (disfavoring jurisdiction in Kiobel). But central to the justification for all such distinctions, according to the argument, is the interest of the U.S. government in avoiding conflicts in foreign relations, and the superiority of the executive over the courts in any given case in identifying what those foreign relations conflicts might be. (Again FWIW, I didn’t have the impression from yesterday’s arguments that any justice much liked this position.) So here’s the exchange that struck me (between the U.S. Solicitor General and Justice Scalia).

Kiobel Roundtable: Protecting National Interests or Universal Ones?

[Meir Feder heads up the appeals and issues practice at the New York office of Jones Day.] For anyone looking to yesterday’s oral argument to predict how the Court will resolve Kiobel—a dubious exercise in any event, as last Term’s health care case should remind us— yesterday’s argument was a mess. The Justices seemed skeptical of the positions of both parties (and,...

Kiobel Roundtable: What is the Purpose of the ATS? Should That Matter?

I have very much enjoyed our guest commentary on the Kiobel extraterritoriality issue and can't resist adding my two cents.  In short, I am pretty dissatisfied with the arguments made by the petitioners, respondents and the United States government. I am not dissatisfied because the arguments are "wrong", but because none seem to offer a persuasive theory of the purpose of...

Weekday News Wrap: Tuesday, October 2, 2012

Oral arguments were heard yesterday for the second time before the US Supreme Court in Kiobel v. Royal Dutch Petroleum; the transcript can be found here. You can already read the preliminary thoughts from a few of our regulars Roger, Deborah and Peter, and as Julian mentioned, starting today, we will have a roundtable discussion from a variety of guest...

Kiobel Argument Goes Badly for Shell (FWIW)

The transcript in the Kiobel case has been posted here. Shell counsel/former Stanford dean Kathleen Sullivan seems to have been on her heels for much of her argument time. Big sticking point on her claim that the ATS was not intended to cover piracy or a "reverse Marbois." (No, that is not a wrestling move; it's the counterfactual in which the...