In Kiobel v. Royal Dutch Petroleum Co., the Court considered the extraterritorial reach of the tort action for violations of customary international law. Kiobel was a “foreign-cubed” case in which a foreign plaintiff sued a foreign defendant for damages arising from conduct in a foreign country. The Justices wrote four different opinions, but they were unanimous in refusing to create a federal common law tort remedy in a foreign-cubed case. At least they were unanimous in holding that a remedy is not available in a case like Kiobel. Some, including the present author, are disappointed in the Court’s decision. But in an important sense, the decision was by definition correct. When nine Justices of different political and philosophical persuasions reach a unanimous decision, it is foolhardy, or at least quixotic, to argue that the Court erred. nAs Justice Robert H. Jackson once quipped: “We are not final because we are infallible, but we are infallible only because we are final.” After Kiobel , the federal courts will have to decide whether any significant aspect of the common law tort for violations of international law should survive the Court’s unanimous decision.
William R. Casto,
The ATS Cause of Action Is Sui Generis,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol89/iss4/2