Roger Paul Alford (Notre Dame Law School) has posted The Future of Human Rights Litigation after Kiobel (Notre Dame Law Review, Vol. 89, No. 1749, 2014) on SSRN. Here is the abstract:
With the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co., the old paradigm of using the Alien Tort Statute to redress human rights violations is dead. Despite Kiobel, there is every reason to expect that plaintiffs will continue to pursue human rights litigation in the United States, but do so in creative ways. Part I briefly analyzes the Supreme Court’s decision in Kiobel with particular attention to the consequences that that decision has for the demise of ATS litigation. Part II summarizes the limits of the TVPA, and suggests that such claims will only be viable against foreign government officials with attachable assets located abroad. Part III outlines claims under civil RICO and discusses the divergent territorial limits that courts have imposed since the Supreme Court’s decision in Morrison v. National Australia Bank, Ltd. Part IV discusses state UDAP statutes regulating unfair business practices and consumer fraud. Those statutes routinely have been included in human rights litigation in the past, and will continue to be included following Kiobel. The presumption against extraterritoriality applies to those statutes, however, resulting in relief for domestic consumers and competitors, but not foreign human rights victims. Part V discusses the most likely avenue for relief by pleading violations of state or foreign tort laws. Whether state or foreign law applies depends on choice-of-law principles. Because the center of gravity for human rights violations is foreign rather than domestic, foreign tort laws will apply to the typical human rights claims that were pursued under the ATS. Part VI follows the previous section by suggesting that the invocation of foreign law might also include the invocation of international law. Choosing foreign law also means choosing international law that is incorporated into that law. Part VII suggests that the common law claims for international law violations recognized in Sosa are not subject to the presumption against extraterritoriality. If the statutory presumption only limits the ATS and not the underlying common law claims, then those claims may be pursued in state courts or in federal courts exercising foreign diversity jurisdiction. Finally, Part VIII concludes with an analysis of the “false conflict” doctrine as applied to international law claims. If the same international law forms part of domestic and foreign law, then the false conflict doctrine would permit domestic courts the international law that forms part of domestic law.