Eugene Kontorovich (Northwestern University Law School) has posted A Tort Statute, with Aliens and Pirates (Northwestern University Law Review Colloquy) on SSRN. Here is the abstract:
-
The pirates of the Caribbean are back. Not in another fantastical film but in the litigation over the reach of the Alien Tort Statute (ATS). For the first time since they dealt with the legal issues raised by a wave of maritime predation in the Caribbean in the early nineteenth century, Supreme Court justices are seriously discussing piracy. This crime has emerged as the test case for evaluating the major controversies about the reach of the statute – namely, extraterritorial application and the existence of corporate liability. At oral argument in Kiobel v. Royal Dutch Shell, justices of all persuasions invoked the piracy as a paradigm or precedent, as had lower courts before them. When the Court surprisingly delayed its decision, and instead called for new briefing and argument on the extraterritorial scope of the statute it has become even clearer that the battle over the ATS would be a naval engagement.
However, much of the discussion of piracy law in ATS cases has been inaccurate or incomplete. Furthermore, the new attention to pirates should direct attention to their very own constitutional provision – the Define and Punish clause. This provision has important and unexplored lessons for current questions before the Court. This Article examines the relevance of “Piracies” – in the Constitution and at sea – for the questions before the Court in Kiobel.
Part I shows that the Constitution’s treatment of piracy limits one form of extraterritoriality, universal jurisdiction – so called “foreign cubed” suits – to offenses that, like piracy, are universally cognizable. Part II turns from constitutional limits to statutory interpretation, and the applicability of presumptions against extraterritoriality. Supreme Court piracy cases show that even for universally cognizable offenses, Congress must explicitly indicate that it wishes to extend such jurisdiction. Statutory references to international law do not make the presumption against extraterritoriality disappear. Part III examines what piracy law teaches about corporate liability. The civil remedies available against pirates bear little resemblance to corporate liability.
