Kiobel Surprise: Unexpected by Scholars but Consistent with International Trends

INTRODUCTION A primary function of legal scholarship is to incubate ideas to inform the bench and bar. Yet several Supreme Court Justices have recently spoken out publicly about what they consider the growing irrelevance of academic legal scholarship (1) (though empirical findings suggest the continued utility of law reviews to judges). (2) The legal academy sometimes entirely misses what turn out to be major and decisive legal issues in prominent areas, not recognizing them at an early stage and dismissing their importance later on. For example, the great majority of professors dismissed the notion that the Patient Protection and Affordable Care Act (Obamacare) could violate the Commerce Clause. (3) The ruling in Kiobel v. Royal Dutch Petroleum Co. (4) similarly blind-sided the academy. The case involved one of the most important, contentious, and dynamic aspects of U.S. foreign relations law--the ability of foreigners to sue in U.S. courts for extraterritorial violations of customary international law (CIL) under the Alien Tort Statute (ATS). (5) Yet the Court surprised observers by deciding the case on grounds almost entirely ignored by the academy--the presumption against extraterritoriality. Despite an extensive academic literature on the statute, (6) the Court's decision was not anticipated by commentators, (7) or for that matter, litigants and inferior judges, making it in some ways a bigger shock than the Obamacare ruling. (8) Indeed, the issue had not even been part of the litigation in Kiobel until the Court raised it sua sponte during oral argument (9) of an entirely different ATS issue. (10) Subsequently, the Court surprised observers by calling for further briefing in the next term. (11) This finally inspired a sudden academic interest in the extraterritoriality questions. Even then, the Court's unanimous acceptance of some extraterritoriality limitation came as yet another surprise to most observers, (12) who predicted a split along more ideological lines. (13) This Article examines the intellectual history of extraterritoriality arguments in ATS litigation, while placing Kiobel in a broader context of global developments. The story of the winning argument in Kiobel is interesting not just for ATS purposes, but as a case study in the path dependence of legal doctrine and of agenda setting by the Supreme Court and the Justice Department. Amazingly, the issue that won in Kiobel, foreclosing most ATS litigation, had never been examined in a law review until a 2003 student note. (14) No court ruled on it for three decades. (15) Even in Kiobel, the issue had not been raised below or by the litigants. Thus, the Supreme Court sua sponte raised an issue in the absence of any division of the lower courts or substantial academic controversy. Yet Kiobel can be understood as not involving the extraterritoriality presumption, but rather its more obscure cousin--the presumption against universality. ATS "foreign-cubed" cases have no U.S. nexus, unlike the typical case raising extraterritoriality concerns. This Article describes the implicit presumption against universality that, while not having a name, has guided courts since the early Republic. It also comprehensively canvasses all statutes under which universal jurisdiction (UJ) has been exercised and finds that, aside from the ATS, Congress always explicitly creates UJ. Moreover, the universal cognizability of a crime in international law is neither necessary nor sufficient for UJ status in U.S. law. This contradicts a major argument for UJ under the ATS--that its reference to international law demonstrates and implies a maximal application of UJ. While Kiobel was a surprise from a domestic law context, it fits perfectly into broader patterns in international law. Universal jurisdiction, which had seemed an ascendant law doctrine in the 1990s, has in the past decade encountered a significant backlash, leading ultimately to its destabilization and retrenchment. …