Eugene Kontorovich (Northwestern University Law School) has posted Kiobel Surprise: Unexpected by Scholars but Consistent with International Trends (Notre Dame Law Review, Vol. 89, Forthcoming) on SSRN. Here is the abstract:
The unanimous ruling in Kiobel v. Royal Dutch Petroleum blind-sided the legal academy. The case involved one of the most contentious and dynamic aspects of U.S. foreign relations law, the Alien Tort Statute (ATS). Yet the Court surprised observers by deciding the case on grounds almost entirely ignored by the academy – the presumption against extraterritoriality.
Amazingly, despite an extensive academic literature on the ATS, the winning issue in Kiobel had never been examined in a law review until a 2003 student note. No court ruled on it until 2010. Indeed, the issue had not even been part of the litigation in Kiobel until the Court sua sponte raised it during oral argument. Finally, the Court’s unanimous endorsement of an extraterritoriality limitation came as yet another surprise to most observers, who predicted a split along more ideological lines.
The story of the extraterritoriality issue in ATS litigation is a case study in the path dependence of legal doctrine and of agenda-setting by the Supreme Court and the Justice Department. This Article examines the intellectual history of extraterritoriality arguments in ATS litigation, while placing Kiobel in a broader context of international trends in universal jurisdiction. The Article also considers possible reasons for this academic oversight. While normative approval of ATS litigation no doubted contributed to the neglect of the issue in the exciting early years of ATS litigation, its longstanding omission must also be attributed to broader intellectual factors. It demonstrates the power of sub silentio decisions: while courts had never dealt with presumption in ATS cases, most observers assumed the issue to have been settled.
The Article argues that one reason the extraterritoriality presumption might have come to mind is that ATS suits involved universality, something more extreme than “mere extraterritoriality.” Thus Kiobel can be understood as involving a rather obscure – and yet unnamed – statutory presumption, the “presumption against universality.” This understanding of the case has significant implications for the disagreement on the Court about the application of the statute to conduct by Americans abroad.
While Kiobel was a surprise from a domestic law context, it fits perfectly into broader patterns in international law. Universal jurisdiction, which had seemed an ascendant doctrine in the 1990s, has in the past decade encountered a significant backlash, leading ultimately to its destabilization and retrenchment. Universal jurisdiction today rarely results in the exercise of jurisdiction, and is increasingly not universal, but sharply contested by African and Asian states. On this background, Kiobel is no surprise, but merely the latest step in a withdrawal from universal jurisdiction by nations that had most aggressively exercised it.