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New Podcasts: Making sense of the court order in Kiobel

After oral arguments before the Supreme Court of the United States on February, 28 and our featured discussion analyzing those arguments, it was reported that the Court, in the Kiobel v. Royal Dutch Petroleum case, issued an order directing the lawyers to reargue the case in the next term with an expanded argument on the scope of the Alien Tort Statute which gives aliens a right to sue in U.S. courts.

The justices seek to examine a question broader than whether corporations can be held liable for allegedly facilitating human-rights abuses in foreign nations in violation of international law norms. Instead the Court wants to tackle the extraterritoriality issue head on in order to decide whether and under what circumstances the 223-year-old Alien Tort Statute allows U.S. courts to "recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." In addition, it seems that the Court may also address whether a "party being sued can be challenged not for directly engaging in human rights abuses, but for 'aiding and abetting' someone else who did so."

To gain a better understanding of the Court's action, we invited Penny Venetis (amicus brief), clinical professor of law and co-director of the Constitutional Litigation Clinic at Rutgers School of Law in Newark, and Andrew Grossman (amicus brief), visiting legal fellow in The Heritage Foundation's Center for Legal and Judicial Studies and litigator at Baker & Hostetler, to discuss the recent order in the Kiobel case.

Grossman, in the podcast, comprehensively reviewed what led to the Court's order:

I think the theme, the mood of the Court at oral argument, was probably best summed up by a statement that Justice Kennedy made before the first advocate [arguing] before the Court even got out his second sentence which was that, expressing great wariness, "the ATS authorizes federal courts to exercise civil jurisdiction over alleged human rights abuses over which the nation has no connection." I think that Justice Alito put it even more clearly when he asked, "What business does a case like this have in the courts of the United States?"

...I think the court realized in considering this case, especially due to something that happened immediately after oral argument, that deciding the case on corporate liability wasn't going to get them where they wanted to go which was eliminating categorically this type of litigation.

In a separate podcast, Professor Venetis had this to say about the Court's order when asked about Justice Alito's questioning:

...I think that Justice Alito was trying to wrap his head around the notion of extraterritoriality which we've been talking about and that's why the court wants to hear additional arguments, but I don't necessarily think it is a bad thing. It certainly is unusual for the court, but I don't necessarily think it is a bad thing. I think there are a number of Alien Tort Statute cases [making] their way through the system, and they're all making their way one-by-one up to the U.S. Supreme Court. And to me, it seems that the Court really wants to take care of these unanswered questions once in for all. That it is going to consider these open questions that it never spoke about in Sosa or in any other case. It [the Court] really wants to address it all at once rather than by piecemeal every few years. I think that that's certainly one way to interpret the Court's actions. The other is that it truly is concerned about this issue of extraterritoriality.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.