After Kiobel, extraterritoriality is not a question of subject matter jurisdiction under the Alien Tort Statute – and neither is corporate liability

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9 Responses

  1. Orin Kerr says:

    You write:

    If Kiobel extraterritoriality is a question of the scope of the cause of action, then the Supreme Court necessarily, if implicitly, determined that jurisdiction was present in Kiobel. This follows from the decision in Steel Co. v. Communities for a Better Environment, in which the Court rejected the notion that it could decide the cause of action before subject matter jurisdiction.

    I don’t follow. How can a Supreme Court decision on one subject implicitly rule on a different subject based on a case that wasn’t mentioned or cited?

  2. Marco Simons says:

    I am not suggesting that the Supreme Court decided the question of whether corporations can be sued for their complicity in human rights abuses under the ATS. But if extraterritoriality is a question of the scope of the claim and not jurisdiction, then the Court necessarily did decide – if only implicitly – that the Second Circuit was wrong in concluding that the ATS provides no jurisdiction in a case such as Kiobel. While the Court has sometimes said that an assumption of jurisdiction where the question is not argued should not be taken as precedential, this isn’t such a case – the very decision below said there was no jurisdiction, so the issue wasn’t merely lurking in the record. And the principle of Steel Co. is a basic principle that is always on the minds of the justices – that jurisdiction comes before the cause of action.

  3. Joshua says:

    I think the problem with this statute is how it clearly speaks in terms of jurisdiction and ties that jurisdiction directly to what is or is not customary under international law. After Sosa’s “strictly jurisdictional” yet quasi-substantive holding, there seems to be something of a feedback loop with how these two aspects of the statute should work with one another.

    At the end of the day, though, Kiobel will probably not be read to have rejected the Second Circuit’s corporate non-liability holding. Looking at the procedural record of how the Court took up the foreign-cubed issue and specifically chose not to address the Second Circuit’s reasoning should signal to lower-court judges that anything in Kiobel that may inferentially touch upon corporate liability would be, at best, dicta.

    The real difficulty here is how they just don’t make jurisdictional statutes like they used to–probably for good reason.

  4. Orin Kerr says:

    I appreciate the response, Marco, but I’m unpersuaded. The Court only decided the issue before it: It didn’t implicitly decide anything that wasn’t mentioned or even argued. The notion that the other issue was implicitly decided because it must have been on the minds of the Justices strikes me as weak. First, the Justices are generalists who often don’t know or remember the basic principles of law immediately outside the specific case they are deciding. Second, even if one or more of them were thinking of the issue, I don’t see how that possibility changes the meaning of the published opinion that doesn’t mention the issue.

  5. Howard Wasserman says:

    Orin: Is it fair to say that the logic of Kiobel means corporate liability is non-jurisdictional, because the question of “who” is liable is logically merits-based in the same way as the question of “for what” he is liable?

  6. Marco Simons says:

    Joshua: Back in the day, before Sosa, many courts did take the view that the cause of action was basically coextensive with jurisdiction under the ATS – that there was no jurisdiction if there wasn’t a viable cause of action. But this has not been the dominant view since Sosa clarified that the ATS is jurisdictional only and the cause of action comes from federal common law; for example, in Doe v. ExxonMobil, the court held that “the question here is not whether the ATS applies extraterritorially but is instead whether the common law causes of action that federal courts recognize in ATS lawsuits may extend to harm to aliens occurring in foreign countries.” Obviously the Supreme Court came to a slightly different answer to this question than the DC Circuit did, but I think the framing of the question is consistent with Kiobel.

  7. Joshua says:

    Thanks very much for your reply and explanation, Marco.

  8. Alex K. says:

    Professor Kerr, if the issue of corporate liability as a jurisdictional matter were squarely addressed by the Kiobel court, there would be no need for a blog post about it. What Marco does is make a very convincing argument that the rationale of the Court’s decision does not comport with the Second Circuit’s holding that ATS jurisdiction does not extend to corps. (Practicing lawyers often make arguments about extending the law and filling in the gaps between the holdings of controlling cases.)

  9. Orin Kerr says:

    Alex K, is that what lawyers do? Who knew. But seriously, my point is just that I don’t find the argument convincing for the reasons I point out.