Kiobel's 'Touch and Concern' Test in the Eleventh Circuit (and Elsewhere) and a New Paradigm for the Extraterritorial Application of U.S. Law.

50 Cumberland Law Review 259 (2020)

25 Pages Posted: 14 Feb 2021

Date Written: 2020

Abstract

The U.S. Supreme Court's jurisprudence on extraterritoriality suffers from a deep incoherence, namely what is meant by extraterritorial application of federal law. Most often the Court gravitates to the law of the place of allegedly illegal conduct, but in other contexts has considered the residence and citizenship of the parties, the effect on U.S. citizens, and other factors. The difficulties with the Supreme Court's approach were on full display in the Supreme Court's 2013 decision in Kiobel v. Royal Dutch Petroleum Co. That case considered the application of the Alien Tort Statute, a federal law that been in place since the late 18th Century. The Court seemed to hold that at least some of the illegal conduct must take place in the U.S., but then held that the presumption against extraterritorial application of the statute could be overcome if the matter were to "touch and concern" the U.S. with "sufficient force." Lower courts have been predictably confused in attempting to apply this test, as well as in attempting to make sense out of the spate of Supreme Court decisions on extraterritoriality since 2010. This article argues that the Supreme Court's approach leads to under-enforcement of U.S. law and proposes a test that would generally allow application of U.S. law in cases in which an essential part of the conduct took place in the U.S. (even if some conduct is foreign) or to the extent that effects are felt by U.S. citizens in the U.S.

Keywords: Alien Tort Statute, extraterritorial application of federal law, extraterritoriality, touch and concern, Kiobel, Morrison, RJR Nabisco, human rights litigation

JEL Classification: K10, K13, K20, K22, K32, K40, K41, K42

Suggested Citation

Borchers, Patrick Joseph, Kiobel's 'Touch and Concern' Test in the Eleventh Circuit (and Elsewhere) and a New Paradigm for the Extraterritorial Application of U.S. Law. (2020). 50 Cumberland Law Review 259 (2020), Available at SSRN: https://ssrn.com/abstract=3777585

Patrick Joseph Borchers (Contact Author)

Creighton University School of Law ( email )

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HOME PAGE: http://culaw2.creighton.edu

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