The Court in Kiobel v. Royal Dutch Petroleum Co. relied on the presumption against extraterritoriality in declining to recognize a federal cause of action for the defendants’ alleged breaches of customary international law. The bulk of Chief Justice Roberts’s opinion for the Court defended the applicability of the presumption to the claims brought under the Alien Tort Statute (ATS). As Justice Alito’s concurring opinion noted, however, the Chief Justice’s opinion adopted a “narrow approach” that “[left] much unanswered.” Similarly, Justice Kennedy’s concurrence observed that the Chief Justice’s opinion properly “[left] open a number of significant questions.” In determining what exactly the Court decided in Kiobel and what it left undecided, it is useful to distinguish several things that might be done with a presumption such as that against extraterritoriality.



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