Bellia and Clark on Kiobel v. Royal Dutch Petroleum and the Alien Tort Statute

A.J. Bellia and my colleague Brad Clark recently published a fascinating article on the Alien Tort Statute, The Alien Tort Statute and the Law of Nations, published in the University of Chicago Law Review. Next week, in Kiobel v. Royal Dutch Petroleum, the Supreme Court will hear oral argument on one aspect of this statute — whether it applies to suits against corporations. Bellia and Clark have posted a short essay arguing that the Supreme Court should not reach the merits in Kiobel because federal courts lack subject matter jurisdiction over the case. The essay is Kiobel, Subject Matter Jurisdiction, and the Alien Tort Statute, forthcoming in the Georgetown Journal of International Law. Here’s the abstract:

The Supreme Court is currently reviewing the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum, a case holding that federal courts lack jurisdiction under the Alien Tort Statute (“ATS”) over claims against corporations. Although the parties have focused on issues of corporate liability under the ATS, there is a logically antecedent question of subject matter jurisdiction that the Court should decide before considering corporate liability. All of the parties in Kiobel—whether corporate or individual—are aliens. Understood in its full legal and historical context, the ATS was a jurisdictional statute that did not apply to suits between aliens. The First Congress enacted the ATS as a species of foreign diversity jurisdiction to satisfy the United States’ obligation under international law to redress violence by U.S. citizens against foreign citizens. Accordingly, the ATS was originally understood to give federal courts jurisdiction only over claims by aliens against U.S. citizens for intentional torts to person or personal property. In Sosa v. Alvarez-Machain, the Supreme Court sought to interpret the ATS in accordance with the expectations of the First Congress. If the Court adheres to this goal in Kiobel, then it should conclude that it lacks statutory subject matter jurisdiction over the case. If the Court decides that the ATS does not apply to suits between aliens, then the Court likely will never have occasion to decide the thorny question of corporate liability under the ATS. Under the express terms of 28 U.S.C. §1332, federal courts already have jurisdiction over suits by aliens against U.S. corporations provided that the amount in controversy is greater than $75,000.00—a condition easily met in cases against large corporations.