Kiobel (I): ATS Arguments Make for Strange Bedfellows

Kiobel (I): ATS Arguments Make for Strange Bedfellows

[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 United States? Surprisingly, the latter question has not been generally regarded as a constitutional one.

The Supreme Court has expanded the issues under consideration in Kiobel, originally about corporate liability under the Alien Tort Statute, to include the extraterritorial application of the law. Like corporate liability, extraterritoriality had for decades just been assumed by the lower courts hearing ATS cases: now it will be fully explored.

These posts cross-posted on Volokh Conspiracy, will focus on the constitutional/federal courts issues involved, and of course explore the early piracy precedents of the Supreme Court to get traction on the issues. In short: before thinking about the ATS, one must consider the constitutional basis for universal jurisdiction – which is quite narrow. Furthermore, there are some good reasons derived both from the constitution and precedent for interpreting the ATS narrowly, as not exercising whatever universal jurisdiction power the federal government does have.

Before turning to the merits, it is amusing to note the strange bedfellows ATS doctrine makes. The litigation and accompanying academic debate over the meaning and scope of the Alien Tort Statute has been a marvel of surprising ideological transpositions, and more reversals of traditional roles than All’s Well That Ends Well. On the issue of corporate liability, liberals (crudely speaking) urge the Court look to parochial U.S. law, and conservatives (still crudely speaking) favor the adoption of a rule from international law and practice. Then the Court asks for new arguments on extraterritoriality. Now the conservatives point to U.S. law – the judge-made presumption against extraterritoriality – and liberals point to the international status of the offenses. It is like a game of Twister.

Neither position is fully correct. There may be a place for extraterritoriality in ATS cases, but in a much narrower class of cases then where it is currently applied. The following two posts will draw on much of my prior work, and I hope the reader forgives me not recapitulating the entire argument of those articles here.

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The feds don’t regulate, international law from which and over which there is universal jurisdiciton regulates.  Congress merely defines, etc. and does not make international law. 11 Op. Att’y Gen. 297, 299-300 (1865).  And Congress can simply incorporate international law by reference, as it has in a few statutes — like the piracy statute, the war Crimes Act, 10 U.S.C. Sec. 818; the ATS, the habeas corpus act.  Further, the express power of Congress to incorporate international law is not “narrow” at all.  U.S. Const. art. I, sec. 8, cls. 10, 18.


[…] had a series of guest posts on the ATS and extraterritoriality. Eugene Kontorovich noticed how the ATS arguments make for strange bedfellows. He also pointed out how the real issue in Kiobel is universality, rather than extraterritoriality. […]