A Debate Two Hundred Years in the Making: Corporate Liability and the Presumption Against Extraterritoriality Under the Alien Tort Statute

Abstract

Enacted as a short and minor provision in the Judiciary Act of 1789, and invoked as the basis of jurisdiction in only two recorded cases until the 1980s, the Alien Tort Statute (ATS) has caused a persistent, but largely inconclusive, debate among scholars and judges over its original purpose. Championed by human rights activists, the modern ATS provides foreign plaintiffs a direct avenue into U.S. federal courts to challenge violations of “the law of nations or a treaty of the United States.” Over two hundred years after its enactment, the U.S. Supreme Court reviewed the ATS for the first time in Sosa v. Alvarez-Machain (2004) reaching only the threshold issue of whether the ATS “was intended as jurisdictional.”

One issue that has produced a clear divide among federal circuit courts is whether corporate liability falls within the purview of the ATS. With the Second Circuit’s 2010 decision in Kiobel v. Royal Dutch Petroleum Co. that corporations are immune from liability under the ATS, the Second and the D.C. Circuit Courts of Appeals stand in direct contention on this issue. Less than a year after the Kiobel decision, the D.C. Circuit in Doe VIII v. Exxon Mobil Corp. rejected Exxon Mobil Corporation’s argument that the ATS carves out an exception to liability for corporations.

This Note explores Doe VIII v. Exxon Mobil Corp. and argues that although the D.C. Circuit’s conclusion regarding corporate liability under the ATS adds a logical approach, a closer look at the court’s argument reveals important unanswered questions, including whether corporate liability should be regarded as a conduct-governing norm or a “technical accoutrement to a cause of action.” This Note also provides an in-depth analysis of the D.C. Circuit’s discussion of extraterritoriality principles in the context of the ATS, arguing that the time to limit the ATS in such sweeping measures has passed.

Informing this analysis is the U.S. Supreme Court’s 2012 review of Kiobel in which the Court unexpectedly requested additional briefing on whether extraterritoriality presumptions should apply to the ATS after entertaining oral arguments on corporate liability in early 2012. The Court’s decision in Kiobel is expected in 2013.