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Alien Tort Statute in the Supreme Court

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In Kiobel v. Royal Dutch Petroleum, Nigerian plaintiffs alleged that a Dutch corporation assisted the Nigerian government in harming Nigerian citizens in violation of international law. Why is this in American courts? Good question, and one the Supreme Court asked after oral argument of this Alien Torts Claim Act case last term.

Professor Bainbridge worries that Justice Roberts will suffer from the Greenhouse effect and reverse the Second Circuit, but I see no reason to think Roberts will do so. As I noted last year, Roberts's decision in NFIB v. Sebelius was both disappointing and worthy of criticism, but it was entirely consistent with his pre-existing jurisprudence. Moreover, even the Obama administration is forced to admit that the Alien Tort Claims Act has metastasized beyond sound public policy. How can the US argue against abusive extraterritorial jurisdiction over United States citizens over United States claims by foreign nations if it permits judicial supremacy in cases like this? I haven't seen any defense of the expansive application of the Alien Tort Claims Act that reflects the risk to American sovereignty. I don't see this as being a 5-4 case.

More: POL featured discussion; a good Reuters profile of the amicus lawyers that persuaded the Court to take this tack; Anderson @ Volokh; Ramsey; AEI event; SCOTUSblog symposium; Cato amicus; Chamber amicus; SCOTUSblog link roundup and docket; argument transcript.

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Who is going to pay the cost of these cases? The American taxpayer? Are we going to print the money? Borrow it from China? Has anyone given consideration that someone in Yemen whose house has been destroyed by a drone may sue an American company that built it? Where is this going to stop?

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


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The Manhattan Insitute's Center for Legal Policy.