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10/01/2012

The Return of Kiobel v. Royal Dutch Petroleum
Michael Ramsey

The U.S. Supreme Court opens its 2012-13 term today with re-argument in Kiobel v. Royal Dutch Petroleum Co.  This is the international human rights case argued to the Court last year, now with new briefing on the question whether the federal Alien Tort Statute (ATS) applies to the bad acts of non-U.S. companies in Nigeria.    (The ATS allows suits by aliens for violations of international law, which is the basis of Kiobel’s claim). 

It’s an interesting case for originalism because it involves interpreting a statute (actually, one section of the Judiciary Act of 1789) that’s almost as old as the Constitution.  And it’s an interesting case for textualism because the plain language of the statute could be read to encompass application to all sorts of situations its drafters likely never imagined or intended.

I’ve written about the case a number of times (see here, here, and here), and so won’t belabor my views.  Plus, after writing about it, I ended up working on amicus brief in support of the defendants/respondents, and I think it not appropriate to allow too much overlap between blogging and real work. 

Nonetheless, one quick point.  I’ll be surprised if the plaintiffs/petitioners win.  The Court ordered re-argument on the extraterritoriality point (which wasn’t encompassed in the initial questions presented), and I assume that’s because a majority had serious doubts about the statute’s reach.  In addition, the U.S. government filed an amicus brief supporting the defendants/respondents on extraterritoriality, and that is likely to be very persuasive in this context.

Instead, I think the interesting question is how far the Court will go to limit the ATS.  One theory, pressed by the respondents, is that it should have no extraterritorial effect (that is, it should apply only to violations that occur within the United States).  Another, pressed by the U.S. government (and, in a somewhat different form, by my amicus brief), is that the statute shouldn’t apply where there are no material connections between the claim and the United States.  The most significant difference between the two is that one approach would allow suits for the extraterritorial acts of U.S. nationals while the other would not.  That doesn’t matter in this particular case but it could in many others.