Monday, October 1, 2012
Supreme Court opens new term with re-hearing on case that could determine the future of the Alien Tort Statute
That new oral argument was held today, the first day of the Court's new term.
On the issue of extraterritoriality, as I have said in the past, the Supreme Court's decision could result in the end of the ATS as we know it, and it does not help that the U.S. Justice Department switched sides on the issue. Go here and here for some of my original comments. As stated by Judge Posner last year, in Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011), courts have been applying the statute extraterritorially since the beginning; no court has ever held that it doesn’t apply extraterritorially. In fact, the only case on the ATS decided by the Supreme Court involved the application of the statute extraterritorially. If you eliminate the possible extraterritorial application of the statute, the statute will be useless.
This is an extremely important case that has generated a tremendous amount of literature. Simply stated, a decision for the defendants will essentially eliminate the ATS as a possible source of redress for human rights violations. For more, see Kiobel v. Royal Dutch Petroleum: What’s at stake, and for whom?.
The SCotUS blog has a recap of the oral argument here. The actual transcript of the argument is available here. The audio will probably be available on Friday. I will post a link to it then.
For more recent comments and information on the oral argument you can go to the New York Times, the Associated Press, Thomson-Reuters, Bloomberg, Slate, ABC news, The Pop Tort and Washington Legal Foundation.
I have been following the developments around the issue since the case was decided by the court of appeals and you can catch up with all the links by going here and scrolling down. There about a zillion posts, all with about another zillion links to cases, articles, op-ed pieces and debates.