The Alien Tort Statute Beyond our Borders: My Experience Writing for the Rona R. Mears Writing Competition

May 6, 2013

Law school blog 5Editor’s note: In January, law students had the chance to weigh in on how the court should rule in Kiobel v Royal Dutch Petroleum by entering the ABA Section of International Law’s Rona R. Mears Student Writing Competition & Scholarship Awards. This is our second of two posts from the law students who won the competition.

I did not find the Rona R. Mears writing competition; it found me. To be more accurate, a colleague brought the competition to my attention. This colleague and I had done some work in connection with the Alien Tort Statute (ATS) and as such we had been closely following the case of Kiobel v. Royal Dutch Petroleum, 132 S. Ct. 472 (2011). I became fascinated with the question of whether the Alien Tort Statute was meant to apply extraterritorially, and I had already begun researching that question in connection with my law review article on the ATS when my colleague pointed me to the Rona R. Mears writing competition.

The prompt of the competition was too good to be true: “weigh in as an amicus curiae on how the [Kiobel] court should rule.” In determining what I thought that ruling should be, I had to confront a complicated and divisive issue—whether the more than 200 year-old ATS should be interpreted to grant subject matter jurisdiction to the federal district courts over conduct that occurred entirely within the territory of a foreign nation. For 33 years the federal courts had assumed, without expressly deciding, that the ATS did just that. And certainly in those 33 years the ATS was brought to bear on all manner of heinous human rights abuses, granting some veneer of recompense to the victims as well as some semblance of punishment to the perpetrators. The question before me, however, was not whether the victims of human rights abuses deserved justice, but whether the ATS was the proper vehicle of that justice.

The propriety of the ATS’s continued application to conduct occurring beyond our borders was, in my opinion, a matter of statutory construction. I began my work from the premise that a recently affirmed canon of statutory construction should apply to the ATS. That canon is called the presumption against extraterritoriality, and before the Court’s decision in Kiobel, the canon’s most recent affirmation came in the case of Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010).

The presumption is that unless a contrary legislative intent is clearly demonstrated, all federal statutes are presumed to apply only to conduct that occurs within the territorial jurisdiction of the United States. I dedicated a portion of my argument to establishing that the presumption, while more clearly delineated in modern cases, has nonetheless been present throughout our nation’s history. And assuming that I had passed that hurdle, I proceeded to argue how nothing in the statute demonstrated any legislative intent with sufficient clarity to overcome the presumption.

There are many conceivable factors that could overcome the presumption, but based on some guidance from the First Circuit, I addressed four in particular: text; context; structure; and legislative history. This part of the analysis took me back through history to look at the original language of the ATS, the dramatic events surrounding its inception, the purpose of its parent legislation (the Judiciary Act of 1789), and the startling lack of legislative history. What I found led me to the conclusion that the ATS was never meant to apply beyond the territorial boundaries of the United States.

When I finally submitted my work to the Rona R. Mears writing competition on February 1, 2013, I had already achieved the most valuable prize—the experience. The Rona R. Mears writing competition gave me the opportunity to address a weighty and divisive issue, while simultaneously honing my skills in legal research and scholarly writing. It is for that unique opportunity that I am most grateful. I would encourage all law students to pursue opportunities like the Rona R. Mears competition; the exercise itself cultivates important skills, and results in a piece of work product that has the potential to cultivate valuable discourse and also serve as a tangible representation of one’s analytical abilities.

If you are interested in any aspect of the Supreme Court’s recent decision in Kiobel, or are a scholar of the Alien Tort Statute, or if you are at all interested in the Rona R. Mears Writing Competition, then I encourage you to read my article and engage with the issue by submitting comments or questions.