Tuesday, July 17, 2012

New twist on Kiobel: Obama administration sides with the defendants on the issue of extraterritoriality

As you probably remember in Kiobel v. Royal Dutch Petroleum the issue before the Supreme Court was whether corporations (or other entities) could be liable under the Alien Tort Statute.  After hearing oral arguments, however, the Court surprisingly set the case for a rehearing and asked the parties to prepare briefs on an issue that had not been presented to the Court - whether the Alien Tort Statute could apply extraterritorialy.  Go here for all the background information and previous posts. Go here for my comments specifically on the question of extraterritoriality, which I think can essentially kill the ATS forever.

But now for today's news:  Alison Frankel is reporting (here) that while in Kiobel's first trip to the Supreme Court, the U.S. government sided with the plaintiffs, when the justices sent the case back to the parties for briefing on whether the statute applies to conduct outside the United States, the Justice Department switched sides. The government's amicus brief, filed last month, argues tepidly that the ATS is not appropriate in this particular case, though it stops short of advocating for an absolute bar on ATS cases stemming from overseas conduct. Interestingly, the State Department, which had joined the Justice Department in signing the first Kiobel amicus brief, did not sign the second one.  Go here for the full report and analysis.

In addition, go here for links to all the articles in the recent symposium on Kiobel sponsored by the SCotUS blog.

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