The Kiobel argument
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DO- I agree “early
consensus seems to be that while a majority of the justices were plainly
concerned by a reading of the universal jurisdiction statute that would give
the courts the power to hear cases with no substantial connection to the United
States, “a majority [also] did not seem inclined to narrow the Alien Tort
Statute nearly into non-existence.””—the first part given the oral argument by
Mr. Paul Hoffman, the latter part given the one by Ms. Sullivan.
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For the transcript
Kiobel Watching
by Deborah
Pearlstein October 1st, 2012
For those watching for
signs of how oral arguments went in the U.S. Supreme Court in Kiobel this
morning, early consensus seems to be that while a majority of the justices
were plainly concerned by a reading of the universal jurisdiction statute
that would give the courts the power to hear cases with no substantial
connection to the United States, “a majority [also] did not seem inclined to
narrow the Alien Tort Statute nearly into non-existence.” So writes the venerable Lyle
Denniston over at Scotusblog. There may be quite a line-drawing exercise to
come. More on the arguments here in a bit…
Kiobel Oral Argument: Why the ATS as We Know it is in Jeopardy
by Roger Alford
My initial impression
of the Kiobel oral argument is that the
Supreme Court is going to do its best to do an historical analysis of the ATS
and use that history to find ways to limit its scope. (DO – I agree) .. But one
way or the other, I predict that the ATS as it currently is applied by lower
courts will be severely limited.
The good news for the
plaintiffs is that Paul Hoffman did an exceptional job of trying to make the
ATS sound unexceptional. One of his best arguments was that courts have all
the tools they need to address the concerns about friction with foreign
nations, including the political question doctrine, the act of state
doctrine, international comity, forum non conveniens, and personal
jurisdiction. In other words, these concerns about tensions with foreign
nations are legitimate, but courts already have developed doctrines sensitive
to those concerns. When pressed, he was even willing to make more concessions,
such as the possible need to exhaust local remedies. The bad news is that the
swing Justices did not appear to be buying the argument that the arrows
currently in the quivers of the courts are enough to limit the reach of the
ATS.
Kathleen Sullivan’s key argument was that the presumption
against extraterritoriality required clear congressional intent, which she
argued was lacking in this case. She then fumbled by trying to argue
that the Court’s recognition of piracy in Sosa did not
undercut this argument. She should have stuck with her argument about the
purpose of the presumption against extraterritoriality—to avoid encroachment on
the sovereign prerogatives of other nations to regulate conduct in their
territory—and conceded the point about piracy on the high seas as falling
within the scope of the ATS. Instead, she argued that pirate ships
are mini-foreign countries and tried to argue that that the presumption
applied even to pirate ships. It was not a fatal mistake, but it was
painful to read.
Sullivan also
struggled with Justice Kagan’s creative reverse Marbois question,
(page 30-32) which aptly addresses the possibility that foreign tensions can
arise from an American’s misconduct against a foreign national on foreign soil,
just as much as an American’s misconduct on domestic soil. Sullivan argued that
other remedies were available, such as extradition or state law torts for
assault. That may be true, but that is also true for an American’s misconduct
on domestic soil. Her argument didn’t address the critical question of why
Congress believed the ATS was necessary in the first place, and why it should
only apply to domestic misconduct by Americans. If concern about foreign
friction is what is driving the ATS, she should have taken a page from Hoffman
and conceded points that were not essential to her case, such as the
possibility that the ATS applied to foreign conduct by an American
non-corporate defendant. (That seemed to be Solicitor General Verrilli’s
position: that the ATS should only apply where there is a clear U.S. nexus,
such as misconduct by an American national on foreign soil or misconduct by a
foreign national on U.S. soil.)
Argument recap: In
search of an ATS compromise
Lyle Denniston
Reporter Posted Mon, October 1st, 2012 2:35 pm
Paul L. Hoffman,
a California lawyer representing Nigerian nationals claiming killing and
torture in their homeland, faced claims that his approach would mean no limits
on a worldwide pursuit of human rights justice, potentially disrupting
diplomatic relations generally. Kathleen
M. Sullivan, a New York lawyer for the big foreign oil companies sued in
the case and seeking to head off almost all ATS claims, encountered suggestions
that her view would cut back even on ATS claims that the Court has already
allowed. And U.S. Solicitor General
Donald B. Verrilli, Jr., arguing against the Kiobel claim but pleading to
keep the courts open to at least some ATS cases, ran up against arguments that
he was switching away unpersuasively from the more clear-cut position taken by
the government in the past.
The Sosa ruling came
up repeatedly in Monday’s discussion, and the Justices pressed the oil
companies’ lawyer on whether the Court would have to overrule that decision in
order to rule for those companies.
There also was some
discussion of whether an ATS case should be barred if the suing party had not
first tried to get some remedy in the country where the alleged international
law violations had occurred.
A gut reaction to
today's Kiobel arguments
Posted Mon, 2012-10-01
17:29 by Rick Herz
No one on the court
seemed willing to overturn the precedent set in Sosa to find
that the ATS does not apply abroad. Justice Kagan actually read from the Sosa opinion
today, reminding us that yesterday’s pirate is the modern day torturer, and our
courts should keep the doors open to victims of these kinds of universally
condemned human rights abuses.
