Kiobel Roundtable: The ATS Was About Protecting Safe-Conducts

by Thomas Lee

[Thomas H. Lee is Leitner Professor of Law at Fordham University School of Law. He is currently a visiting professor of law at Harvard.]

I agree with Meir that piracy is a “red herring”  and am writing to elaborate on his thoughtful remarks.  The thing that troubles me most about how the Court is thinking about this case is that it continues to accept the Sosa statement that the ATS is 2/3 about piracy and ambassadorial infringements, but not thinking at all about the 1/3 nebulous “safe conduct” violation which I have argued was the real purpose of the ATS.  106 Columbia Law Rev. 830 (2006).  Other scholars have agreed in the past that the ATS was likely not about ambassadorial infringements or piracy (e.g., Anne-Marie Slaughter in 1989 re ambassadorial infringements; Curt Bradley re piracy in 2002).

This conclusion becomes crystal clear when the Judiciary Act’s jurisdictional provisions are read as a unit.  Regardless whether holistic reading makes sense for the Constitution or other statutes, it surely makes sense for the First Judiciary Act, which was largely the work of Oliver Ellsworth and enacted by the first session of the First Congress to set up the federal courts for the first time.  Ambassadors can sue in the Supreme Court, with concurrent jurisdiction in state court under section 13 of the Judiciary Act (pages 851-64 of my article explain why), and piracy falls within the admiralty and maritime jurisdiction of the district courts under clause 2 of section 9 of the Judiciary Act, two clauses before the ATS which is the fourth clause in section 9.  People often seem to forget that the ATS is not a free-standing statute but just a clause in a section of a much bigger, iconic enactment.

The admiralty and maritime grant in clause 2 was exclusive with the exception of the saving to suitors clause to state courts; the ATS grant in clause 4 is concurrent with state and the federal circuits.  The admiralty jurisdiction would have been territorially limited because most actions (called “libels”) were in rem, but if a pirate ship were brought to a US port, it could be condemned and its captain and crew tried for piracy.  This is all explained in pages 866-71 of my article, and the tension with Bradford’s construction of the ATS in 1795 is explained at pages 889 to 895.

In my view, all of this is explicit from a careful reading of the Judiciary  Act.  It then raises the question of what exactly the ATS is about, and the safe-conduct is all that is left.  My article was an attempt to understand what exactly the late eighteenth century safe conduct was at international law, how it was understood by the First Congress, and what it means today.  My conclusion for what it means today was that the ATS was enacted “to redress common law torts brought by friendly or neutral aliens [thus, the tort was in violation of the law of nations or a treaty of the United States” promising safety] committed by private actors — including aliens– with a United States sovereign nexus, not for international law violations committed by anyone anywhere.”

Kiobel Roundtable: The Devil in the Details

by Beth Stephens

[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 to claims arising in foreign countries constitute a coherent limit? The questions at the first Kiobel argument in February and the order for reargument issued the following week suggested that a majority of the Court was considering such a holding. At Monday’s reargument, however, this time with the benefit of full briefing on that issue, the questions indicated that the Justices had recognized that this apparently simple solution would pose its own problems, and that other doctrines might respond to some or all of their concerns.

A categorical bar on ATS claims arising in the territory of foreign states would require rejecting thirty years of ATS litigation, including the holding of Filártiga v. Peña-Irala. As Justice Kagan explained, it would also require abandoning the reasoning of the Court’s 2004 decision in Sosa v. Alvarez-Machain. Justice Scalia pointed out that applying the presumption against extraterritoriality would bar claims arising on the high seas as well as those arising in the territory of a foreign state, despite Sosa’s indication that the ATS was intended to apply to piracy, an international crime that occurs at sea. Sosa also relied on a 1794 opinion by U.S. Attorney General William Bradford, which stated that the statute applied to international law violations committed in foreign countries. The questions and comments at Monday’s argument suggest that the limit proposed in the order for reargument is neither coherent nor supported by statutory text, history, or precedent.

A categorical bar would be flawed for another fundamental reason: it would be an over-inclusive response to concerns about interference in the affairs of foreign states. International human rights norms both prohibit certain violent conduct and…

Kiobel Roundtable: Who’s Afraid of Transitory Torts? Thoughts on Kiobel II

by Chimene Keitner

[Chimène I. Keitner, is a Visiting Professor of Law at the USC Gould School of Law and Professor of Law, University of California Hastings College of the Law.]

Personal jurisdiction ain’t what it used to be. As Justice Ginsburg noted (Tr. at 54), in the age of Goodyear Tire, multinational corporations can’t necessarily be sued everywhere for everything. But Shell’s message at oral argument on Monday was clear: we don’t want to rely on Goodyear Tire or on any other rule that gives a U.S. judge discretion over whether or not an ATS case goes forward. We want a categorical prohibition, period.

It’s fascinating listening to judges worry about the consequences of letting judges make decisions. Some of them seem downright determined to ensure their own irrelevance. They say: listen to Congress.

In this case, Congress spoke. It didn’t say very much. But Congress said that cases brought by aliens for international law violations should be brought in federal court, not state court. Shell wants to send them back to state court (Tr. at 32).

In Ackerson v. Erie R. Co., 31 N.J.L. 309, 310-11 (1865), the New Jersey Supreme Court stated that “[i]t is, in the international code, the well established doctrine, that every nation may rightfully exercise jurisdiction over all persons within its domains, with regard to matters purely personal,” and that transitory actions “are universally founded on the supposed violation of rights, which, in contemplation of law, have no locality.” This case didn’t come up in oral argument, but the language nicely captures the idea…

Kiobel Roundtable: The Supreme Court Gropes Toward a Sensible Solution

by William S. Dodge

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs of the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

My thanks to Opinio Juris for inviting me to guest blog on the reargument in Kiobel v. Royal Dutch Petroleum Co., which I attended on Monday. As most readers likely know, the Supreme Court originally granted cert to decide whether corporations may be sued for human rights violations under the Alien Tort Statute (ATS) as natural persons may be. But after oral argument last February, the Court asked the parties to address the additional question of whether, and under what circumstances, the ATS applies to conduct in foreign countries. Because almost all claims brought under the ATS to date—including the Second Circuit’s seminal 1980 decision in Filartiga v.Pena-Irala and the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain—have involved alleged conduct abroad, the Court’s additional question raised the stakes for human rights litigation considerably.

Respondents and many of their amici urged the Court to apply the presumption against extraterritoriality to the ATS and limit causes of action exclusively to violations of international law in the United States. But that argument appeared to gain little traction with the Court on Monday. Chief Justice Roberts expressed skepticism when Respondents’ counsel Kathleen Sullivan argued that piracy on the high seas was not within the original scope of the ATS, while Justice Scalia (who wrote the Court’s most recent decision applying the presumption against extraterritoriality in Morrison v. National Australia Bank) said he did not know of any cases applying the presumption only to the territory of a foreign country and not to the high seas. Sullivan’s assertion that “[e]very single founding era precedent that stimulated the ATS or came soon in its aftermath involved international law violations alleged to have occurred on U.S. soil or in U.S. waters” was quickly rebutted by Justice Breyer, invoking Attorney General Bradford’s 1795 opinion that expressed “no doubt” that a civil suit could be brought under the ATS for violations of the law of nations in Sierra Leone.

Meanwhile, Justice Kagan offered a variation of the 1784 Marbois incident, hypothesizing that the French ambassador to Britain was attacked in London by an American citizen who sought refuge in the United States and suggesting that…

Kiobel Roundtable: The Alien Tort Statute, Kiobel, and Extraterritoriality

by Curtis Bradley

[Curtis Bradley is the William Van Alstyne Professor of Law at Duke University.]

The Alien Tort Statute (ATS) is one-sentence long, was enacted more than 200 years ago, has essentially no drafting history, and was relatively unknown before the Second Circuit’s seminal Filartiga decision in 1980.  As a result, although it is obvious that the ATS was meant to provide the federal courts with jurisdiction over certain suits brought by aliens concerning torts in violation of international law, it is difficult to discern precisely what sort of suits Congress had in mind.  Determining how such a statute should apply to modern conditions, in the light of fundamental changes in international law and in the nature of U.S. common law since the statute’s enactment, is even more challenging, to say the least.

We do know that the ATS was enacted at a time when the authority of nations to regulate conduct was thought to be highly territorial, especially with respect to the conduct of foreign citizens.  We also know that the most prominent mention of the ATS in the early years after it was enacted—in Attorney General Bradford’s 1795 opinion concerning the involvement of U.S. citizens in an attack on the British colony in Sierra Leone—involved a situation in which the United States was alleged to have international responsibility for the torts (as I discussed here).  In addition, we know that the United States would not then—and still does not—have international responsibility for torts committed by foreign citizens (or corporations) on foreign soil.  These and related considerations have led a number of scholars to conclude that the ATS was not designed for a case like Kiobel, where the United States has no responsibility for the alleged tort, and where applying the statute raises extraterritoriality concerns.

Supporters of broad ATS litigation have responded that this line of argumentation is “purposive” and improperly neglects the ATS’s plain language.  One problem with this critique is that the plain language of the ATS provides no support for any federal cause of action, let alone an extraterritorial one.  As a result, supporters of broad ATS litigation do not, in fact, rely simply on the text of the ATS.  They argue, as did the majority of the Supreme Court in Sosa v. Alvarez-Machain, that the ATS was implicitly designed to allow certain tort claims to be brought without a separate statutory cause of action, and they cite various historical materials and events in support of this hypothesis.  To address the requirement in modern doctrine of a positive law source for the cause of action, they also contend, as did the Court in Sosa, that the ATS should be construed as authorizing federal common law claims for certain torts that violate international law.  The Court in Sosa explained that it was adopting this construction in order to give effect to the “ambient law of the era” in which the ATS was enacted.  Whatever one may think about this approach to statutory construction, it is not based solely on plain language.

In any event, there is nothing improperly purposivist about applying a limiting presumption such as the presumption against extraterritoriality (which was applied in Morrison v. National Australia Bank (2010)), or the softer presumption against extraterritorial applications that would involve an “unreasonable interference with the sovereign authority of other nations” (applied in F. Hoffman-La Roche v. Empagran (2004)).  Among other things, such a presumption can prompt Congress to provide additional policy guidance.  The ATS would seem to be a prime candidate for such prompting.  After all, Congress’s intent in the ATS is obscure, and, as noted, the text does not even mention causes of action, let alone define their proper scope.  Moreover, extraterritorial application of this statute, by focusing on alleged tortious conduct by foreign governments and their supporters abroad, has a high potential for creating foreign relations friction. A number of the briefs filed in Kiobel emphasize this concern, including the latest brief filed by the Executive Branch, a brief filed by the United Kingdom and The Netherlands, and a brief filed by former State Department Legal Advisers.

It has been argued that an extraterritorial limiting presumption should not apply to the ATS because…

Kiobel’s Reargument: Get Ready for the Live Commentary (Updated)

by Julian Ku

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 commentators in the U.S. on the Alien Tort Statute.  Two of those leading commentators, Professors Chimène Keitner and Eugene Kontorovich, will join me live for a Federalist Society Teleforum on Wednesday, October 3 at 3 p.m. Eastern Standard Time in the U.S.  We’ll chat about the case, and take calls from listeners.  (For those few Opinio Juris readers out there who aren’t dues-paying Federalist Society members, you’ll have to either sign up or wait for the podcast.) Whoops! I am now informed that the Federalist Society has generously agreed to make the live teleforum available to Opinio Juris readers, so please feel free to call in 888-752-3232 and ask questions!)

Kiobel Oral Argument: Why the ATS as We Know it is in Jeopardy

by Roger Alford

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 of conduct (such as aiding and abetting). But one way or the other, I predict that the ATS as it currently is applied by lower courts will be severely limited.

I say that by reading the tea leaves of the Justices’ votes that are up for grabs. Justice Kennedy asked, among other things, about whether there was a U.S. nexus in this case (page 4), about risks of reciprocal claims brought against U.S. corporations in foreign courts (page 5), about the risk of ATS litigation causing complications with foreign governments (page 10), and about the scope of the presumption against extraterritoriality (p. 37). Several Justices, including Chief Justice Roberts, asked about the possibility of vindicating one’s rights in another forum that has a closer connection to the events or the parties, including the defendant’s domiciliary forum (the United Kingdom or the Netherlands) or the place of injury (Nigeria). None of the swing Justices seemed interested in the concept of universal jurisdiction, except to preserve the Sosa paradigm that embraced piracy on the high seas as an actionable international law violation.

The good news for the plaintiffs is that Paul Hoffman did an exceptional job of trying to make the ATS sound unexceptional. One of his best arguments was that courts have all the tools they need to address the concerns about friction with foreign nations, including the political question doctrine, the act of state doctrine, international comity, forum non conveniens, and personal jurisdiction. In other words, these concerns about tensions with foreign nations are legitimate, but courts already have developed doctrines sensitive to those concerns. When pressed, he was even willing to make more concessions, such as the possible need to exhaust local remedies. The bad news is that the swing Justices did not appear to be buying the argument that the arrows currently in the quivers of the courts are enough to limit the reach of the ATS.

As for extraterritoriality, Hoffmann’s key argument was that the presumption against extraterritoriality is overcome where the purpose of the statute requires its extraterritorial application. The presumption, he argued, “would undermine the very purposes of the statute” which is “the best evidence that we have about what it meant in the era” (page 52). He cogently cited the Bradford opinion as an historical example of what the drafters were thinking in this regard.

To be sure, there is ample Supreme Court case law to support an argument that sometimes the purpose of a statute requires its extraterritorial application. See United States v. Bowman, Blackmer v. United States, United States v. Flores, Cook v. Tait, Browder v. United States. One way to articulate this is to say that the clear intent of Congress is expressed in drafting a statute that necessarily requires extraterritorial application. Whether or not the swing Justices will interpret the ATS in this fashion is anyone’s guess.

Kathleen Sullivan’s key argument was that the presumption against extraterritoriality required clear congressional intent, which she argued was lacking in this case. She then fumbled by trying to argue that the Court’s recognition of piracy in Sosa did not undercut this argument. She should have stuck with her argument about the purpose of the presumption against extraterritoriality—to avoid encroachment on the sovereign prerogatives of other nations to regulate conduct in their territory—and conceded the point about piracy on the high seas as falling within the scope of the ATS. Instead, she argued that pirate ships are mini-foreign countries and tried to argue that that the presumption applied even to pirate ships. It was not a fatal mistake, but it was painful to read.

Sullivan also struggled with Justice Kagan’s creative reverse Marbois question, (page 30-32) which aptly addresses the possibility that foreign tensions can arise from an American’s misconduct against a foreign national on foreign soil, just as much as an American’s misconduct on domestic soil. Sullivan argued that other remedies were available, such as extradition or state law torts for assault. That may be true, but that is also true for an American’s misconduct on domestic soil. Her argument didn’t address the critical question of why Congress believed the ATS was necessary in the first place, and why it should only apply to domestic misconduct by Americans. If concern about foreign friction is what is driving the ATS, she should have taken a page from Hoffman and conceded points that were not essential to her case, such as the possibility that the ATS applied to foreign conduct by an American non-corporate defendant. (That seemed to be Solicitor General Verrilli’s position: that the ATS should only apply where there is a clear U.S. nexus, such as misconduct by an American national on foreign soil or misconduct by a foreign national on U.S. soil.)

So I predict that the ATS as we know it will be curtailed. I don’t know exactly how it will be curtailed, but based on the oral argument today I predict that the future of foreign plaintiffs using the ATS to sue foreign corporations for conduct on foreign soil is in serious jeopardy.

Kiobel Argument Goes Badly for Shell (FWIW)

by Peter Spiro

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 well, allowing for the possible interposition of procedural bars to the making of Alien Tort claims (as pushed by Sotomayor). He got in an effective IG Farben analogy and even a little human rights speechifying (see p. 55). Breyer gets the award for zinger of the day: “if Hitler isn’t a pirate, who is?” (Anyone want to do the legal math on that one?)

So predictions of the ATS (extraterritorial) demise may be premature. On the other hand, recent experience demonstrates that predictions based on oral arguments are not especially reliable.

We’ll be hosting guest posts here on the Kiobel argument through the middle of this week.

Kiobel Watching

by Deborah Pearlstein

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 line-drawing exercise to come. More on the arguments here in a bit…