The Cross-Cutting Politics of the ATS and Universal Jurisdiction

In discussions of Kiobel v. Royal Dutch Shell and the Alien Tort Statute, many commentators suggested if the Supreme Court limits corporate liability or extraterritoriality under the ATS, it would eviscerate the statute, and be bad for human rights. More generally, limiting the ATS is thought to serve broadly conservative interests.

These points are only weakly true for the ATS, as I’ll explain below. But more broadly, a limited understanding of the role of universal jurisdiction (UJ) and the Constitution’s Offenses power would have a variety of cross-cutting political valences when applied to other statutes. I have been describing the sources and scope of the constitutional limits on UJ in prior posts. So if reigning in foreign-cubed suits under the ATS can be “scored” as a liberal loss, the logic for doing so would give conservatives a loss under the material support for terrorism law, and both a conservative and liberals loss under the Maritime Drug Law Enforcement Act (but a libertarian win!).

To put it differently, UJ – the exercise of judicial power in foreign-cubed suits – has no inherent political valence; this depends on the norms being universalized. The ATS is one of a few instances of such jurisdiction, and a restriction on it could have several ripples and ramifications in other important contexts.

Moreover, it should be remembered that the ATS itself has other uses besides foreign-cubed suits against companies. Restricting such actions does not make the ATS meaningless, it only stops one particular genre of claims. ATS suits can and have been brought against individual American nationals, even as the new briefs in Kiobel are being written. Also, it should be noted that the ATS suits are not limited to liberal causes, and limiting it could obstruct some more conservative initiatives. Consider two pending ATS suits with rather opposite political valences, none of which involve corporate liability or foreign-cubed situations:

• Japanese whalers are suing Sea Shepherd Conservation Society in federal court for acts of piracy, violations of the SUA Treaty other navigational safety charters. The case raises interesting issues about the availability of injunctions under the ATS, as well as the meaning of “private ends” in the definition of piracy. (H/T: Other Eugene.)

• In recent weeks the Center for Constitutional Rights, which pioneered ATS litigation in Filartiga and many subsequent cases, filed suit against a U.S. preacher for encouraging the Ugandan government to criminalize homosexuality.

An interesting question this case raises is whether the Noerr-Pennington doctrine applies to the ATS generally, and whether it applies extraterritorially. One would think that those who argue corporate liability in ATS cases should be governed by federal common law would find Noerr-Pennington, based as it is on First Amendment considerations, fully applicable in this context. Noerr-Pennington has been extended to a variety of torts and to RICO actions, why not ATS?

One answer could be that antitrust violations are simply not violations when done by governments: indeed, much of what progressive economic policies entail is cartelizing workers and industries. Human rights violations, however, specifically are human rights violations when done by governments. But this just brings us back to the crossroads: do U.S. common law or international norms govern secondary legal issues in ATS cases?

Passover approaches, and with it the end of my rotation here. It has been a pleasure, and thanks to Eugene for having me here.

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