Kiobel Surprise: Unexpected by Scholars but Consistent with International Trends

By Kontorovich, Eugene | Notre Dame Law Review, March 2014 | Go to article overview

Kiobel Surprise: Unexpected by Scholars but Consistent with International Trends


Kontorovich, Eugene, Notre Dame Law Review


INTRODUCTION

A primary function of legal scholarship is to incubate ideas to inform the bench and bar. Yet several Supreme Court Justices have recently spoken out publicly about what they consider the growing irrelevance of academic legal scholarship (1) (though empirical findings suggest the continued utility of law reviews to judges). (2) The legal academy sometimes entirely misses what turn out to be major and decisive legal issues in prominent areas, not recognizing them at an early stage and dismissing their importance later on. For example, the great majority of professors dismissed the notion that the Patient Protection and Affordable Care Act (Obamacare) could violate the Commerce Clause. (3)

The ruling in Kiobel v. Royal Dutch Petroleum Co. (4) similarly blind-sided the academy. The case involved one of the most important, contentious, and dynamic aspects of U.S. foreign relations law--the ability of foreigners to sue in U.S. courts for extraterritorial violations of customary international law (CIL) under the Alien Tort Statute (ATS). (5) Yet the Court surprised observers by deciding the case on grounds almost entirely ignored by the academy--the presumption against extraterritoriality.

Despite an extensive academic literature on the statute, (6) the Court's decision was not anticipated by commentators, (7) or for that matter, litigants and inferior judges, making it in some ways a bigger shock than the Obamacare ruling. (8) Indeed, the issue had not even been part of the litigation in Kiobel until the Court raised it sua sponte during oral argument (9) of an entirely different ATS issue. (10) Subsequently, the Court surprised observers by calling for further briefing in the next term. (11) This finally inspired a sudden academic interest in the extraterritoriality questions. Even then, the Court's unanimous acceptance of some extraterritoriality limitation came as yet another surprise to most observers, (12) who predicted a split along more ideological lines. (13)

This Article examines the intellectual history of extraterritoriality arguments in ATS litigation, while placing Kiobel in a broader context of global developments. The story of the winning argument in Kiobel is interesting not just for ATS purposes, but as a case study in the path dependence of legal doctrine and of agenda setting by the Supreme Court and the Justice Department. Amazingly, the issue that won in Kiobel, foreclosing most ATS litigation, had never been examined in a law review until a 2003 student note. (14) No court ruled on it for three decades. (15) Even in Kiobel, the issue had not been raised below or by the litigants. Thus, the Supreme Court sua sponte raised an issue in the absence of any division of the lower courts or substantial academic controversy.

Yet Kiobel can be understood as not involving the extraterritoriality presumption, but rather its more obscure cousin--the presumption against universality. ATS "foreign-cubed" cases have no U.S. nexus, unlike the typical case raising extraterritoriality concerns. This Article describes the implicit presumption against universality that, while not having a name, has guided courts since the early Republic. It also comprehensively canvasses all statutes under which universal jurisdiction (UJ) has been exercised and finds that, aside from the ATS, Congress always explicitly creates UJ. Moreover, the universal cognizability of a crime in international law is neither necessary nor sufficient for UJ status in U.S. law. This contradicts a major argument for UJ under the ATS--that its reference to international law demonstrates and implies a maximal application of UJ.

While Kiobel was a surprise from a domestic law context, it fits perfectly into broader patterns in international law. Universal jurisdiction, which had seemed an ascendant law doctrine in the 1990s, has in the past decade encountered a significant backlash, leading ultimately to its destabilization and retrenchment. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Kiobel Surprise: Unexpected by Scholars but Consistent with International Trends
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.