It looks like the Supreme Court may not decide the corporate liability issue this year after all. An order just came out asking both sides to submit a new round of briefing on extraterritoriality -- the question of whether and when the Alien Tort Statute (ATS) covers violations of international law that were committed outside the United States.
During the Kiobel oral arguments last week, several Justices raised questions about when a case arising abroad should be heard in U.S. courts. In response, Paul Hoffman pointed out that there's nothing unusual about "transnational" tort litigation. Foreigners have always been able to sue other foreigners in U.S. courts over conduct that occurred anywhere in the world. Our courts have doctrines to deal with these sorts of cases and can dismiss them if they truly don't belong here. Based on his own comments, even Justice Kennedy seemed to recognize that Filartiga v. Peña-Irala -- the first modern ATS lawsuit, in which a foreigner successfully sued a foreigner over torture that happened in Paraguay, and which has previously been endorsed by the Supreme Court -- was rightly heard and decided in the United States.
Fortunately, the legal justification for hearing cases between foreigners based on foreign conduct, so long as the defendant is found in the U.S., is well established. In fact, the tradition of hearing transnational cases goes back to beyond the founding of the United States. I'm confident that the Court will follow centuries of undisputed legal precedent and affirm the use of the ATS as a means of redress for the worst human rights abuses, wherever they are committed.
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