Academic journal article Harvard Law Review

Clarifying Kiobel's "Touch and Concern" Test

Academic journal article Harvard Law Review

Clarifying Kiobel's "Touch and Concern" Test

Article excerpt

The Alien Tort Statute (1) (ATS) is a single sentence long. (2) It's a pithy statute, but for many years it served as a "lynchpin" of human rights litigation. (3) For three decades, foreign plaintiffs used the ATS to sue foreign defendants for human rights violations that occurred outside the United States. (4) The Supreme Court put a stop to that practice, however, in Kiobel v. Royal Dutch Petroleum Co. (5) In Kiobel, the Court held that the ATS didn't rebut the "presumption against extraterritoriality." (6) As a result, the Court explained, a plaintiff cannot file an ATS suit unless her claim "touch[es] and concern[s] the territory of the United States." (7)

But the Court gave almost no explanation of how an ATS claim might fulfill this "touch and concern" requirement. (8) Accordingly, Kiobel's mysterious test has caused a circuit split. (9) The Court is likely to eventually grant certiorari to resolve this split. (10) And when the Court does, this Note argues that it should adopt the rule that Justice Alito outlined in his Kiobel concurrence. Simply put, an ATS claim should only "touch and concern" the United States if the wrongful conduct that occurred in the United States suffices to constitute an international law violation. (11) Justice Alito's approach best accords with the Court's doctrine on the presumption against extraterritoriality. (12) It also minimizes the potential for international friction while being faithful to the Court's precedent. (13) And it would best maintain the separation of powers principle that foreign affairs are matters for the political branches, not the courts. (14)

Despite all of these benefits, Justice Alito's concurrence is surprisingly unpopular in the Kiobel literature. Scholars have labeled Justice Alito's opinion "extreme" (15) and inconsistent with precedent. (16) One scholar has even argued that Justice Alito's view is "[t]he one thing that the Kiobel presumption cannot mean." (17) Indeed, although there are many proposals for clarifying Kiobel's "touch and concern" test, virtually all of them involve some kind of multifactor standard. (18) No one ever seems to have made the case for Justice Alito's bright-line, conduct-based rule.

This Note makes that case, and it proceeds in three Parts. Part I outlines the Court's jurisprudence on the ATS and the presumption against extraterritoriality. Part II summarizes Kiobel and the "touch and concern" circuit split. Part III explains why the Court should adopt Justice Alito's proposed rule. Section III.A outlines how the Court's doctrine on the presumption against extraterritoriality mandates adopting Justice Alito's view of the ATS. Section III.B describes how the Court's concerns about international comity mandate this approach as well. Finally, section III.C argues that adopting Justice Alito's rule best maintains separation of powers principles between the judiciary and the political branches.

I. THE ROAD TO KIOBEL

A. The Alien Tort Statute

The ATS provides federal district courts with jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (19) The First Congress passed the ATS in 1789. (20) It's not clear why. (21) The general idea, however, seems to be that Congress wanted to give foreign officials the power to sue U.S. citizens who injured them on U.S. soil. (22)

In any event, for almost 200 years the ATS lay dormant. (23) But in 1980, the Second Circuit "breathed new life" (24) into the ATS in Filartiga v. Pena-Irala. (25) Joel and Dolly Filartiga, two Paraguayan citizens, sued Americo Pena-Irala, a Paraguayan government official, for torturing their family member to death. (26) The Filartigas argued that the ATS provided jurisdiction for their suit, but the district court disagreed. (27) The Second Circuit reversed, calling their suit "undeniably an action by an alien, for a tort only, committed in violation of the law of nations. …

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