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A new take on Kiobel: putting ATS in line with international practice and other statutes

The new issue of the Notre Dame Law Review – its annual issue on federal courts – brings together an impressive group of scholars, and myself, to evaluate the Supreme Court’s decision last term in Kiobel v. Royal Dutch Petroleum, which severely limited the extraterritorial scope of Alien Tort Statute cases.

My article, Kiobel Surprise: Unexpected by Scholars but Consistent with International Trends, makes three points. First, it examines how an issue that proved so decisive in ATS litigation had received so little scholarly attention.

Second, the Article puts ATS in the context of universal jurisdiction worldwide. Most of the countries that had been most aggressive in asserting such jurisdiction in human rights cases have recently passed statutes sharply curtailing it. The ATS, while surprising on the background of federal ATS litigation, fits with, and builds on, this international trend.

Finally, the article provides a comprehensive survey of all U.S. statutes that provide for universal jurisdiction, and finds that none of them do this implicitly, as the ATS was said to. This supports the Court’s ruling, but may provide for a narrower understanding of it that would be consistent with continuing to find non-universal jurisdiction over acts of Americans abroad.

An abstract and link to my paper can be found here.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.

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