Swaine: Kiobel and Extraterritoriality: Here, (Not) There, (Not Even) Everywhere

Edward T. Swaine (George Washington Univ. - Law) has posted Kiobel and Extraterritoriality: Here, (Not) There, (Not Even) Everywhere (Oklahoma Law Review, Vol. 69, p. 23, 2016). Here's the abstract:

The Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. was relentlessly, and unexpectedly, local in character. Notwithstanding the global outlook suggested by the Alien Tort Statute (ATS), which governs civil actions by “an alien” for torts contrary to “the law of nations or a treaty of the United States,” the Court invoked the presumption against extraterritoriality to limit the statute’s reach.

This Article, based on remarks delivered at the University of Oklahoma Law School, puts a heavy emphasis on territoriality — not, it should be stressed, as a matter of normative preference, but purely as a reflection of the Court’s recent cases. It is accordingly inconsistent with some of the more expansive readings of the ATS, though it stops short of Justice Alito’s prescription. If future cases are to depart substantially from territoriality, the better path is not to explore what Kiobel left unresolved, but to revisit what it purported to settle.