Kiobel surprise: unexpected by scholars but consistent with international trends.

• Author: Kontorovich, Eugene

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. Universal jurisdiction today rarely results in the exercise of jurisdiction, and it is increasingly not universal, but sharply contested by African and Asian states. Kiobel is the next major step in a broad disengagement from UJ by leading Western nations.

Part I traces the discussion and application, or lack thereof, of the extra-territoriality presumption both in academic literature and in litigation and considers possible reasons for its extremely belated appearance after more than two decades of litigation. While normative approval of ATS litigation, no doubt, contributed to the neglect of the issue in the exciting early years of ATS litigation, its longstanding omission must also be attributed to broader intellectual factors. Part II places ATS "foreign-cubed" suits in the international context of trends in the exercise of universal jurisdiction. On this background, Kiobel is no surprise, but merely the latest step in a withdrawal from UJ by nations that had most aggressively exercised it. Finally, Part III argues that one reason the extraterritoriality presumption might have come to mind is that ATS suits involved universality, something more extreme than "mere extraterritoriality." Thus Kiobel can be understood as involving a rather obscure--and yet unnamed--statutory presumption, the "presumption against universality." This understanding of the case

has significant implications for the disagreement on the Court about the application of the statute to conduct by Americans abroad.

1. TRACKING THE EXTRATERRITORIALITY PRESUMPTION IN ATS CASES

   Modern ATS litigation began with a foreign-cubed case, Filartiga v. Pena-Irala. (16) The Second Circuit's recognition of a cause of action for international law violations under the ATS lead, eventually, to an extensive debate in which most of the leading American foreign relations scholars participated. (17) The dispute focused on such fundamental issues as the relation between CIL and U.S. law, the extent of federal common law, and the role of courts in foreign relations. (18) Thus, the ATS was the focus of some of the most sustained debates in foreign relations law. It is in this context that the presumption against extraterritoriality fell through the cracks.

   This Part chronicles the discussion of the presumption in academic literature, where it received a late and brief role in the ATS debates. It then examines the path of the presumption in ATS cases, both because such litigation often prominently featured briefs by professors, and to see how the scholarly debate intersects with the judicial discussion. Before proceeding, given that there is some implicit criticism of academic shortsightedness here, the author freely notes that he has engaged in the ATS debates himself for some time, and is guilty of the same omissions.

   1. Extraterritoriality in Commentary

      Early commentary simply observed, favorably, that courts had not applied the presumption against extraterritoriality in ATS cases, but did not examine the issue. (19) The first academic argument for applying the presumption in ATS cases came, perhaps not surprisingly, from Curt Bradley and Jack Goldsmith. (20) However, perhaps because they raised the issue in the midst of their broad and profound attack on the status of international law as federal common law, (21) this particular criticism of the ATS did not get immediate further attention.

      The first in-depth discussion of the relevance of the presumption to ATS litigation came in a 2003 student note that argued for its applicability. (22) Already this hit on the major pieces of evidence on both sides of the issue--the Bradford memorandum on one hand and the specific issues giving rise to the ATS on the other hand. (23) The genre of student-edited law reviews, to say nothing of student scholarship, receives regular derision. The Jarvis note shows that sometimes student work--which is thought to stick ploddingly to doctrine--can be an effective incubator for novel ideas ignored by a hollow academic consensus. (24) Nonetheless, up until Kiobel, the general sense in the academy weighed heavily against the relevance of the extraterritoriality presumption to ATS cases. (25) To be sure, the lack of discussion of the presumption against extraterritorial application of statutes does not mean scholars ignored any potential concerns arising from the foreign subject matter of most ATS suits. The extraterritoriality issue permeated or informed a variety of objections to the ATS. But these concerns were usually explored in grander terms than the extraterritoriality presumption--they were framed in international or constitutional law terms, rather than modest federal courts interpretive canons. Thus some scholars expressed a general concern that such lawsuits raised separation of powers concerns by intruding into foreign relations matters. (26) Several commentators invoked variants of the Charming Betsy canon, (27) questioning whether the foreign-cubed suits truly enjoyed support in international law, (28) either because UJ itself is not well established, or civil UJ is not, or the particular offenses go beyond what international law universalizes. Another group of critics argued that foreign-cubed suits raised constitutional problems, either by violating Article III's exclusion of pure alien diversity suits, (29) or violating the Offenses Clause. (30)

   2. ATS and Extraterritoriality in the Courts

      The courts came even later to the extraterritoriality concerns. The Second Circuit's seminal opinion in Filartiga only touched briefly on the extraterritorial nature of the case, noting it "is not extraordinary" for courts to hear such cases. (31) In the decades that followed, federal courts heard a large number of purely foreign ATS cases without the extraterritorial aspect being litigated or discussed at all. Indeed, observers assumed the ATS enjoyed a tacitly understood exemption to the extraterritoriality presumption, such that courts did not even need...