This Note explores the post-Kiobel ATS cases and argues that the Fourth Circuit’s approach to considering claims that manifest a close connection to the United States as potentially entitling the plaintiff to relief under the ATS is preferable to approaches that categorically bar claims when the alleged conduct has occurred abroad. Part I describes the Kiobel decision in more depth and the subsequent ATS case law to outline the contours of recent circuit cases. Part II demonstrates how domestic personal jurisdiction and choice of law principles weigh in favor of a more expansive reading of the ATS, as adopted by the Fourth Circuit, and compares the ATS to other areas of law, including securities and antitrust law. Part III puts forward a three-part disjunctive test that courts could use to add more definition to the Fourth Circuit approach in determining if a claim touches and concerns the territory of the United States in a way that allows U.S. federal courts to consider it under the ATS: If (1) the defendant is a U.S. citizen or a U.S. corporate domiciliary; or (2) the defendant has conducted explicit planning or extensive activity in furtherance of the violation in the United States; or (3) the violation is clearly and manifestly orchestrated to target the United States, with the intent of harming the United States and its citizens, then the claim overcomes the ATS presumption against extraterritoriality.
To Touch and Concern the United States with Sufficient Force: How American Due Process and Choice of Law Cases Inform the Reach of the Alien Tort Statute After Kiobel,
Mich. J. Int'l L.
Available at: https://repository.law.umich.edu/mjil/vol37/iss3/4