On Tuesday, the Supreme Court will hear argument in Kiobel v. Royal Dutch Petroleum to determine whether the Alien Tort Statute (ATS) applies to suits against corporations. In a recent essay in the Georgetown Journal of International Law, Professors Bellia and Clark urge the Court not to reach that question, but instead to dismiss the case for lack of statutory subject matter jurisdiction because the parties to the case are all aliens. They assert that “[u]nderstood in its full legal and historical context,” the ATS is a “jurisdictional statute that did not apply to suits between aliens.” The essay builds on their recent article in the Chicago Law Review, available here.
Bellia and Clark’s argument was raised by several dissenting Ninth Circuit judges in Sarei v. Rio Tinto, PNC, an en banc decision in which a petition for certiorari is pending (listed as a “petition to watch” on this blog). Their point was also noted, though not advanced, by the respondents in a footnote in their merits brief. We’ll have to wait for Tuesday’s argument to see if the Justices are interested in addressing the issue.