Post-Kiobel Procedure: Subject Matter Jurisdiction or Prescriptive Jurisdiction?

11 Pages Posted: 3 Dec 2014 Last revised: 1 Mar 2016

See all articles by Anthony J. Colangelo

Anthony J. Colangelo

Southern Methodist University - Dedman School of Law

Christopher Knight

Southern Methodist University - Dedman School of Law

Date Written: December 2, 2014

Abstract

This essay evaluates whether Alien Tort Statute (ATS) cases involving foreign elements raise questions of prescriptive jurisdiction or subject matter jurisdiction after the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum. It concludes that the lower court trend treats Kiobel as going to subject matter jurisdiction, and that this trend is probably correct. It would have been helpful for the Supreme Court to clearly provide guidance on this question — which has major doctrinal and procedural consequences for the law and litigants. The procedural implications of viewing challenges based on Kiobel as going to judicial subject matter jurisdiction are that such challenges can be raised at any time during the course of litigation, including by the court sua sponte. The doctrinal implications are that when evaluating whether Kiobel’s exception for “claims that touch and concern the territory of the United States, ...with sufficient force to displace the presumption against extraterritorial application,” courts should look not only to whether the conduct alleged touches and concerns the United States, but instead, as some lower courts have found, to “all the facts that give rise to ATS claims, including the parties’ identities and their relationship to the causes of action.”

Keywords: Alien Tort Statute, human rights, subject matter jurisdiction, prescriptive jurisdiction, statutory construction

Suggested Citation

Colangelo, Anthony J. and Knight, Christopher, Post-Kiobel Procedure: Subject Matter Jurisdiction or Prescriptive Jurisdiction? (December 2, 2014). UCLA Journal of International Law and Foreign Affairs, Vol. 19, pp. 49-62, 2015; SMU Dedman School of Law Legal Studies Research Paper No. 248. Available at SSRN: https://ssrn.com/abstract=2533077

Anthony J. Colangelo (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States
2147682372 (Phone)

Christopher Knight

Southern Methodist University - Dedman School of Law

P.O. Box 750116
Dallas, TX 75275
United States

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