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03/01/2012

The Original Meaning of the Alien Tort Statute, Continued
Michael Ramsey

At oral argument in Kiobel v. Royal Dutch Petroleum Co. on Tuesday, several Justices showed interest in the original purpose of the Alien Tort Statute (ATS), an issue I discussed a couple of days ago.  (Analysis from Lyle Denniston at SCOTUSBlog and John Bellinger at Lawfare).

Here, in part, is John Bellinger's description:

The narrow question presented in the Kiobel v. Royal Dutch Petroleum case is whether corporations may be held liable for violations of international law under the Alien Tort Statute.  But during this morning’s Supreme Court argument, Justices Kennedy, Roberts, and Alito all seemed more interested in addressing the issue of the extraterritorial application of the ATS than the question of corporate liability.

Justice Kennedy, who has a longstanding interest in international law and who many observers expect to be the swing vote in this case, set the tone with the very first question from the bench to Paul Hoffman, counsel for the plaintiffs:

Justice Kennedy:  “But, counsel, for me, the case turns in large part on this:  page 17 of the red brief.  It says, “International law does not recognize corporate responsibility for the alleged offenses here.  And the — one of the — the amicus brief for Chevron [written by Jack Goldsmith, a former Kennedy clerk] says, “No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.  And in reading through your briefs, I was trying to find the best authority you have the refute that proposition, or are you going to say it is irrelevant?”

Justices Roberts and Alito piled on:

Justice Alito:  “Well there’s no particular connection between the events here and the United States.  So, I think the question is whether there’s any other country in the world where these plaintiffs could have brought these claims against the Respondents.”

Chief Justice Roberts:  “If — if there is no other country where this suit could have been brought, regardless of what American domestic law provides, isn’t it a legitimate concern that allowing the suit itself contravenes international law?”

Justice Alito:  “The Alien Tort Statute was enacted, it seems to be — there seems to be a consensus, to prevent the United States — to prevent international tension, to — and — does this — and this kind of lawsuit only creates international tension.”

Justice Kennedy reverted twice more to the foreign relations impact of ATS litigation, noting the brief filed by the United Kingdom and the Netherlands opposing extraterritorial application of the ATS, and chiding Deputy Solicitor General Ed Kneedler for the position of the U.S. Government that U.S. courts should not look to “international consequences.”

As I discussed previously, the issue is not so much extraterritorial application of the ATS (which might well make sense in some contexts) but application of the ATS to conduct that has no material relationship to the United States.  It's hard to imagine that the First Congress, in enacting the ATS, wanted to reach that sort of conduct.  In the highlighted questions, Roberts, Alito and Kennedy seem focused on that aspect of the case.  I'm especially interested that Chief Justice Roberts talks about whether "allowing the suit itself contravenes international law" (my view is that it does), and that Justice Kennedy invokes the amicus brief of the United Kingdom and the Netherlands (which also makes that point).  Again, this idea connects up to the ATS's original meaning, both because the purpose of the ATS was to reduce international friction, not to increase it, and because by longstanding rules of interpretation generally worded statutes shouldn't be interpreted to violate international law.

Meanwhile, at Balkinization, Marco Simons asks Is the Alien Tort Statute Limited to Suits against U.S. Citizens?  His post addresses a somewhat different claim: that allowing alien-against-alien suits under the ATS would be unconstitutional because there's no Article III basis of jurisdiction.  (As Mr. Simons notes, there have been a number of academic articles making this claim).   As he also says, the only way to find Article III jurisdiction is to find that a suit under international law is a suit "arising under ... the Laws of the United States."  Whether that works as an originalist matter is complicated (more complicated that his post suggests).  The definitive exchange on this point is between Curtis Bradley (Duke Law) (finding no Article III jurisdiction) and William Dodge (Hastings Law) (finding Article III jurisdiction) in the Virginia Journal of International Law, volume 42, pp. 587-711 (from 2002, but still the best look at the issue).

Finally, Max Kennerly has some harsh words for Justice Scalia in Originalism and Corporate Personhood Meet The Alien Tort Statute.  I think he has a point, to this extent: Justice Scalia's concurring opinion in the Court's prior ATS opinion Sosa v. Alvarez-Machain seems strained in arguing that the only law-of-nations rules that the ATS encompasses are those that existed in 1789.  I don't understand why Congress wouldn't have expected the statute to encompass new law-of-nations rules, just as, say, the First Amendment encompasses new communications technologies or the Second Amendment encompasses new firearms.

Both the Article III argument and the no-new-rules argument would bar extension of the ATS to Kiobel's situation, but (not surprisingly) I prefer my approach, which I think is a simpler way to take a sure step toward the statute's original purpose without reaching any further than needed.  Perhaps the oral argument exchanges noted above suggest that at least some Justices seem to be thinking along similar lines.