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10/01/2012

Update on the Kiobel Argument (and a Response to Eizabeth Price Foley)
Michael Ramsey

At SCOTUSBlog, Lyle Denniston's assessment of today's Supreme Court oral argument in Kiobel v. Royal Dutch Petroleum Co. suggests the Court may be looking for a middle ground instead of the complete bar on extraterritorial application proposed by the defendants/respondents.  Similar thoughts from Peter Spiro at Opinio Juris are here.  On the originalist implications, see my prior post here.

Meanwhile, law professor Elizabeth Price Foley, blogging at Instapundit, has a short post on the case that gets at least two (I would say three) things wrong.  To begin, the post describes the case as "asking the Supreme Court today, in Kiobel v. Royal Dutch Shell Petroleum, to open up U.S. courts to tort claims filed against U.S. corporations for 'human rights' violations the corporations allegedly committed in other countries," which would be a "ludicrous overreach of US sovereignty."  First, Kiobel is not (directly) about tort claims against U.S. corporations, but about tort claims against foreign corporations.  Second, if it were about U.S. corporations, there's no "overreach of US sovereignty" when the United States regulates the foreign activities of U.S. corporations -- international law allows a sovereign to regulate the activities of its own nationals worldwide, and the United States does so all the time.  (Whether the Alien Tort Statute at issue in Kiobel does so is of course a separate question).

More interesting to me, though, is this statement:

The [Alien Tort Statute] was designed to protect foreign ambassadors harmed on U.S. soil, allowing such state-law torts to be heard by the more objective and interested U.S. (as opposed to state) courts.  Using it to open U.S. courthouse doors for any alleged human rights atrocity claimed “by an alien for a tort” committed overseas is ... a perversion of the statute’s meaning (aka, congressional intent) ...

The first part of this statement might be true (my own view is that the purposes were somewhat broader).  Even if it is, how does this "design[]" relate to the text of the statute, which does not say anything about ambassadors or the location of the covered offenses?  (The text is only: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.").

Professor Foley says that the "statute's meaning" is "aka" [also known as] "congressional intent."  Not to a textualist it isn't!  Indeed, isn't Professor Foley taking Judge Posner's side in the much-discussed Posner/Scalia faceoff of a couple of weeks ago?  Posner, I think, would attempt to work out what modern application would best comport with his best guess as to Congress' purpose, regardless of the best textual reading of the statute -- which I also think is what Professor Foley is doing.

As I've discussed, there are legitimate textualist ways to read the statute more narrowly than what appears at first glance (including by looking at international law limits on national jurisdiction).  But Kiobel is a harder case than Professor Foley's quick assessment acknowledges, precisely because the statute's text seems broader than Congress likely intended it.