University of Notre Dame

Lawyer.2d

Volume 89, Issue 4

Greg Mitchell, March 15, 2014

This Issue of the Notre Dame Law Review is dedicated in memory of Associate Law School Dean Emeritus William O. McLean (1922–2013).

Issue 4 is Volume 89’s iteration of the annual Federal Courts, Practice, & Procedure issue of the Notre Dame Law Review.  The scholarship solicited for this year’s Fed Courts issue focuses on Kiobel v. Royal Dutch Petroleum, an important but puzzling case decided by the Supreme Court last year.  The case and the symposium surround the application of the Alien Tort Statute (ATS), a federal jurisdictional grant enacted by the First Congress, the meaning and application of which have perplexed scholars for years.  The discussion lies at the intersection of the law of federal courts, international law, and the debate over statutory interpretation.  The Notre Dame Law Review has once again brought together an impressive group of commentators, many of whom have written in its pages before.

Much of the discussion in Issue 4 revolves around the complex history of the ATS. Professor Beth Stephens of Rutgers University, a respected voice on international law and the ATS, contributes to Issue 4 a full-length article detailing this history and how it has been treated in the courts, beginning with the backdrop of developing constitutional structure in the 18th century and continuing on through the role of the ATS in the modern human rights movement.  Complimenting Professor Stephens’ article, Professor William Dodge of UC Hastings School of Law examines the 33 year period between Filartiga v. Pena-Irala and Kiobel, providing a narrative of the doctrinal developments that led the Court to apply the presumption against extraterritoriality.  As an expert in international law and the Co-Reporter for the Restatement (Fourth) of Foreign Relations Law, Professor Dodge contributes to the weighty experience of Issue 4’s authors.  Representative of that experience is Professor Thomas Lee of Fordham University, who looks at ATS history with a view toward the future.  Professor Lee’s article divides pre-Kiobel decisional law into two distinct periods.  Kiobel will likely inaugurate a third chapter, Professor Lee argues, and he details what that will look like based on the three phases of ATS he has identified.  Finally, Professor Eugene Kontorovich looks at the history of ATS litigation from a different angle: the evolution of the legal academy’s views on the subject.  Professor Kontorovich, an associate professor at Northwestern University School of Law and a contributor at the popular Volokh Conspiracy blog, documents and attempts to explain how the legal academy completely failed to anticipate the outcome of the Kiobel case.

Although the case was unanimously decided, it is not clear that the legal analysis of the Kiobel majority will survive further scrutiny.  Notre Dame’s Professor A.J. Bellia and Professor Bradford Clark of George Washington University Law School have coauthored a piece for Issue 4 that accepts the Court’s historical approach in Kiobel but disputes its results.  Both Professors Bellia and Clark are leading experts in the area of federal courts, and in this article they embark on a convincing historical analysis in arguing that the ATS is properly understood as protecting the rights of aliens in general against U.S. citizens, rather than diplomats specifically, as the majority’s historical examples implied.  According to Professors Bellia and Clark, the Court’s attenuated historical analysis in Kiobel misreads the ATS.  Professor William Casto is Texas Tech’s renowned legal historian, whose scholarship has been cited in numerous Supreme Court opinions in the Kiobel line of cases.  With an approach that differs from Professors Bellia and Clark’s, Professor Casto’s article in Issue 4 reconsiders the Kiobel decision in light of prior decisions and other federal statutes, and argues that the Court ought to have taken a more functional analysis due to the unique nature of the ATS.

Kiobel’s import is not limited to questions of legal doctrine.  Human rights advocates have anticipated the possibility of using the ATS to vindicate human rights abroad.  The Kiobel decision may have foreclosed this possibility.  On the assumption that it has, Professor Roger Alford of Notre Dame Law School reviews other avenues for relief in the United States available to victims of international human rights abuses.  Professor Doug Cassel, like Professor Alford, is also a professor at NDLS who has published widely on subjects in international law.  Professor Cassel analyzes the jurisdictional implications of the Kiobel decision.  The Court invoked the presumption against extraterritoriality in deciding that the ATS does not apply to suits against foreign defendants for alleged torts committed abroad. Professor Cassel argues that despite this decision, existing law is such that U.S. jurisdiction is available against American defendants.

The legacy that will be left by Kiobel is far from certain, whether or not the majority’s analysis remains in place.  Professors Carlos Vazquez of Georgetown University Law Center and Ralph Steinhardt of George Washington University Law School, both experts in international law, have each written articles for Issue 4 that address the future of Kiobel. Professor Vazquez’s article examines in detail the presumption against extraterritoriality, and in what situations the Court may apply or refuse to apply it in the future, based on the evidence in the Kiobel opinions.  Professor Steinhardt argues that the impact of Kiobel on the application of ATS in the future will turn on Justice Kennedy’s cryptic concurrence, and examines what that might be.

Issue 4 promises to shape the debate on the ATS.  This area of the law is both theoretically and practically important, and as globalization continues, promises to remain so for the foreseeable future.  The Notre Dame Law Review is proud to provide a forum for this significant discussion.