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Search: Kiobel

22 Apr

“[E]ven where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” That is the operative language in Kiobel. Which raises the question, if mere corporate presence is not enough, what kind and how much territorial activity within the United States is enough? After Kiobel, that will be a critical question for future ATS litigation....
22.04.13 | |

03 Oct

[Beth Stephens is Professor of Law at Rutgers, the State University of New Jersey-Camden.] Monday’s oral argument in Kiobel v. Royal Dutch Petroleum, Inc. focused on the search for a coherent limit to the reach of the Alien Tort Statute. The need for some limit is uncontroversial: even the most ardent advocates of human rights accountability agree that not all cases involving human rights violations, no matter how egregious, belong in U.S. courts. The devil, as always, is in the details. Would a holding that the ATS does not apply...
03.10.12 | |

26 Mar

[Eugene Kontorovich is Professor of Law at Northwestern School of Law] Today the Supreme Court takes on the scope of the Commerce Clause in the historic healthcare cases. The case raises the question of whether there are any substantive limits to the federal government’s domestic regulatory power. But another case soon to be (re)argued before the Court, Kiobel v. Royal Dutch Shell, manages to raise an even broader question: Are there any substantive limits to the federal government’s power to regulate matters occurring outside and having nothing do with the...
26.03.12 | |

01 Oct

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 famous attack of a French diplomat by an American occurs in France, not Philadelphia). See pp. 25 and following. Paul Hoffman, on the other hand, stood his ground pretty...
01.10.12 | |

01 Oct

For those watching for signs of how oral arguments went in the U.S. Supreme Court in Kiobel this morning, early consensus seems to be that while a majority of the justices were plainly concerned by a reading of the universal jurisdiction statute that would give the courts the power to hear cases with no substantial connection to the United States, “a majority [also] did not seem inclined to narrow the Alien Tort Statute nearly into non-existence.” So writes the venerable Lyle Denniston over at Scotusblog. There may be quite a...
01.10.12 | |

01 Oct

I am still digesting the transcript of the Kiobel reargument today, although I can say that nothing in the argument today has changed my view that this brief (which both Ken and I signed) represents the best approach to resolving the case. I will say, however, that nothing in the argument suggested that any member of the Court is considering this approach either. In any event, Opinio Juris will be hosting a number of guest posts on the case in the next couple of days from some of the leading...
01.10.12 | |

01 Oct

I realize this should have gone to our announcements section, but it seems well worth flagging. As OJ readers are probably aware, the Kiobel case is being re-argued today in the Supreme Court. Tomorrow my law school, Washington College of Law, American University, in DC, is holding a post-argument discussion with some stellar folks – Paul Hoffman (lead counsel for plaintiffs), Katie Redford (Earthrights International), John Bellinger (former DOS Legal Adviser and Arnold & Porter partner), and Andrew Grossman (Heritage Foundation). WCL’s own Steve Vladeck will moderate. The event will...
01.10.12 | |

05 Feb

I’m dashing off to China in a few hours, but I couldn’t resist a brief post on the Second Circuit’s denial of rehearing on Kiobel v. Royal Dutch. Does anyone doubt this case is headed for the Supreme Court? Which is not to say that I disagree with the panel majority on the merits. indeed, I have offered a full-scale defense of the majority’s position in a recent issue of the Virginia Journal of International Law here. I will have more thoughts soon, but for now, here is the abstract....
05.02.11 | |

04 Feb

Today the Second Circuit denied panel rehearing and rehearing en banc in Kiobel v. Royal Dutch Petroleum. My colleague Trey Childress has details here....
04.02.11 | |

28 Feb

… from this morning’s hearing: Kiobel and Mohamad. I would be curious as to readers’ prognostications of how the Justices will rule based on the oral arguments today. (Thanks for comments, interested in more. For example, where did this extraterritoriality question suddenly materialize from and does it portend something different from what was originally thought? You can also see John Bellinger’s take on the argument at Lawfare.) Update: Reading the transcripts more carefully, as well as Chimene Keitner’s thoughtful post above, I recall that in some blog post somewhere a...
28.02.12 | |

01 Oct

My initial impression of the Kiobel oral argument is that the Supreme Court is going to do its best to do an historical analysis of the ATS and use that history to find ways to limit its scope. It could do so by holding that the ATS does not apply extraterritorially, or that it does not apply unless there is some U.S. nexus, or that it does not apply to corporations, or that it does not apply without exhausting local remedies, or that it does not apply to certain types...
01.10.12 | |