If statutes were zombies, the Alien Tort Statute of 1789 (1) (ATS) would lead the undead who walk among us. By one conventional narrative, the statute arose from the misty eighteenth-century murk, then lay moribund for nearly two centuries until 1980, when the Second Circuit breathed a strange new life into it with Filartiga v. Pena-Irala. (2) That decision then remained a "monstrous" curiosity (3)--generating more academic conferences than cases and more awards of tenure than damages--until 1984, when the Court of Appeals for the District of Columbia Circuit decided Tel-Oren v. Libyan Arab Republic. (4) The three-way split among the panel in Tel-Oren suggested that there was no consensus that Filartiga had been rightly decided, and the death watch began in earnest, even as the years passed and jurisdiction was sustained in numerous cases that fit the Filartiga model. This issue of the Notre Dame Law Review, in assessing the impact of Kiobel v. Royal Dutch Petroleum, (5) marks the thirtieth anniversary of the statute's first premature obituary.
Like the proverbial reports of Mark Twain's demise, it is easy to exaggerate the death of alien tort litigation in the aftermath of Kiobel. After all, the Supreme Court there decided--unanimously for the second time in nine years (6)--that the ATS does not provide jurisdiction in a high-profile case, deploying a rhetoric of caution in the interpretation of this ancient statute. Equally significant, the majority in Kiobel expanded the existing presumption against the extraterritorial application of U.S. law, (7) applying it for the first time to a purely jurisdictional statute instead of substantive statutes like the securities laws, (8) antidiscrimination laws, (9) and labor laws. (10) The essential problem with this approach is not that courts, litigators, and scholars failed to anticipate the issue. (11) To the contrary, over the decades since Filartiga, extraterritoriality and the related choice of law issues have frequently been front and center at the pre-trial stages of ATS litigation. (12) The problem with the majority's approach in Kiobel is instead that it contradicts the Supreme Court's own precedents and leaves the lower courts with precious little guidance in determining the circumstances under which the presumption against extraterritoriality might be overcome in future ATS cases. In this Article, I show that what guidance there is in Kiobel emerges not from the majority opinion but from the concurrences, especially the cryptic single paragraph from Justice Anthony Kennedy.
I. SOSA, THE PRESERVATION OF FILARTIGA, AND REVISIONISM 2.0
In Sosa, the Supreme Court determined conclusively that the ATS was purely jurisdictional, (13) an issue on which the lower courts had been divided ever since Judge Bork's separate opinion in Tel-Oren. (14) It also ruled that the statute had effect from the moment of its enactment. (15) That was a critical analytical move, because it meant that the ATS did not lie dormant until such time as Congress might see fit to define and implement the norms that would fall within the subject matter jurisdiction of the federal courts. To the contrary, even without that congressional action, the statute "enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law." (16) In short, the Sosa Court established that the ATS does not create a cause of action, but that it does recognize a cause of action, derived from the common law, for certain violations of international law: "The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time." (17) Sosa thus requires that the tort be "committed" in violation of international law, not that international law itself recognize a right to sue in domestic courts and not that Congress adopt implementing legislation defining the wrong. …