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Search: Kiobel

28 Feb

or other non-state actors for committing the most atrocious of abuses, this is the first time that the push back from corporations has reached the Supreme Court. On the one hand, corporations declare, in cases like Citizens United v. FEC, that they have rights. On the other hand, corporations refuse to take responsibility for committing or aiding in torture or genocide. If “corporations are persons too,” we ought to be able to hold them accountable for the most serious crimes. Kiobel is a modern-day David and Goliath story. The Kiobel...
28.02.12 | |

19 Apr

[Ishai Mooreville is an attorney at Baker & Miller PLLC, Washington, DC. His forthcoming article on the 1795 Bradford Opinion regarding the Alien Tort Statute can be found here.] The opinions expressed in this article belong to the author alone, and the author has not received any compensation from any party for writing this article. The question of personal jurisdiction over the defendant in Kiobel, which was raised during oral argument and mentioned in passing in Justice Breyer’s concurrence, may have had a significant effect on the outcome of the...
19.04.13 | |

19 Apr

...IV in Kiobel concerns situations in which there is both territorial and extraterritorial conduct. It is not a backdoor attempt to embrace Justice Breyer’s concurring opinion, or an attempt to convert domestic conduct into domestic interests. The “significant questions” that remain unanswered by Kiobel are how much and what kind of domestic activity is sufficient to rebut the presumption against extraterritoriality. Consistent with Morrison, those questions must be answered in light of the text, history, and purpose of the statute as interpreted by the Court in Section III of Kiobel....
19.04.13 | |

02 Oct

...natural persons have been sued as accomplices. See Conceptualizing Complicity in Alien Tort Cases, at n.9.) If the United States wants to preserve Filártiga while avoiding future Kiobels, reading an “actual perpetrators” requirement into the ATS is not the way to do it. Would I recommend a “no holds barred” approach to ATS suits going forward? No. As much as I hate to see the corporate cases make bad law for the fugitive dictator cases, the fact is that actions taken on behalf of corporate entities can cause significant harm....
02.10.12 | |

23 Apr

In addition to the Ku/Yoo essay in Forbes, I’ll just point out two more positive takes on Kiobel from FOBs (friends of the Blog). In Lawfare, John Bellinger expresses satisfaction with the Roberts opinion, and takes some credit for raising the presumption against extraterritoriality issue in government briefs during the Bush Administration and in the first round of Kiobel briefing. He also adds a quick note on Bauman, guessing that the Court will reverse on personal jurisdiction grounds and not reach the ATS issues. In the WSJ, Eugene Kontorovich of...
23.04.13 | |

10 May

beatings; sleep deprivation; sensory deprivation; forced nudity; stress positions; sexual assault; mock executions; humiliation; hooding; isolated detention; and prolonged hanging from the limbs. All of the Plaintiffs are innocent Iraqis who were ultimately released without ever being charged with a crime. They all continue to suffer from physical and mental injuries caused by the torture and other abuse. CCR makes a strong argument in the relevant brief that Al Shimari is precisely the rare ATS lawsuit that can survive Kiobel. First, CCR argues that Kiobel‘s presumption against extraterritorial application of...
10.05.13 | |

28 Jan

[Anthony Colangelo is Associate Professor of Law at SMU Dedman School of Law.] As my comment to Roger’s initial post noted and my forthcoming piece in the Cornell Law Review explains, like Bill Dodge I view the presumption against extraterritoriality’s operation in Kiobel as going principally to the cause of action allowed by the ATS as opposed to the ATS proper. Though as Roger points out, the Supreme Court did find itself construing the ATS in order to discern whether the presumption applied to the cause of action, making an...
28.01.14 | |

18 Apr

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...
18.04.13 | |

29 Feb

Here is the second round of my exchange with Professor David Weissbrodt over at Pointoflaw. I begin by citing the following exchange during Kiobel’s oral argument yesterday. SULLIVAN: …The crucial question that is at the threshold is which law determines whether corporations are liable. JUSTICE BREYER: I think you are right on that point…. – From the Kiobel v. Royal Dutch Shell, Oral Argument Transcript, February 28, 2012 at 32. This exchange between Kathleen Sullivan, the attorney for respondents Royal Dutch Shell in Kiobel, and Justice Breyer highlights the importance...
29.02.12 | |

17 Apr

[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...
17.04.13 | |

21 Apr

Our discussion of Kiobel has been fascinating, but it has been focused on the question of what exactly is left of the ATS in the future and what differences exist between the majority opinion and the various concurrences. In our contribution today to Forbes.com, John Yoo and I focus on Kiobel’s significance in light of the history of ATS litigation. Building on my earlier post on this subject, we argue that the real significance of Kiobel is its unanimous rejection of an interpretation of the ATS that would grant universal...
21.04.13 | |

02 Oct

[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, for that matter, equally skeptical of the Solicitor General’s middle ground), but no obvious alternative approach distinguished itself, either. Much of the confusion doubtless stems from the unusual...
02.10.12 | |