Kiobel's "Touch and concern" text in the Eleventh Circuit (and elsewhere) and a new paradigm for the extraterritorial application of U.S. law

Abstract

The Supreme Court's jurisprudence on so-called "extraterritorial" application of federal statutes has long suffered from deep incoherence. Specifically, it is not clear what it means for a statute to be applied extraterritorially. Does it mean that the allegedly liability-creating conduct is foreign? Does it mean that the effects of the conduct are felt abroad? Does it mean that some or all the parties are foreign? Or is it some combination of the above? Early on, it appeared that the place of the conduct was the relevant connection. But that absolutist position weakened some over time. Then, in a spate of opinions beginning in 2010, the Court began to wrestle with the question in earnest, but even across the span of a few years, the Court had difficulty fitting the cases into a stable framework. This article focuses on the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., which interpreted an odd-duck statute known as the Alien Tort Statute (hereinafter "ATS"). Although the Court in Kiobel unanimously held that the ATS could not be applied in that case because of the entirely foreign events and effects, the majority opinion created a new test for whether the presumption against extraterritoriality could be "displace[d]" if "the claims touch and concern the ... United States .. . with sufficient force." Lower courts, including those in the Eleventh Circuit, have been understandably confused.

In Part I, I consider the Supreme Court's extraterritoriality jurisprudence leading up to Kiobel. In Part II, I discuss Kiobel itself. In Part III, I examine Kiobel's aftermath, especially in the Eleventh Circuit, and offer a new paradigm for the jurisprudence of extraterritoriality.