Anthony Clark Arend

As noted in a previous post, last March, the Supreme Court ordered the reargument of Kiobel v. Royal Dutch Petroleum (Esther Kiobel is pictured above, center). That reargument will take place tomorrow, the first day of the Court’s new Term. At issue, of course, is the status of the Alien Tort Statute (ATS), 28 USC § 1350, first incorporated in the Judiciary Act of 1789. As will be recalled, the ATS provides:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

The main question argued previously before the Court was whether a corporation was liable under the ATS. A panel of the Second Circuit had ruled that there was no such corporate liability under the ATS. But instead of ruling on that question, the Court ordered that the case be reargued, focusing on this question:“Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

As Lyle Denniston over at SCOTUSblog notes, “this case puts before the Supreme Court one of the most important and historic issues affecting international law and U.S. foreign policy.” Denniston notes:

It is a test of whether judges in the U.S., applying both American legal theory and international law norms, will have a role in holding to account those accused of carrying out atrocities in foreign lands.  Foreign governments and international business firms have weighed in against allowing U.S. judges wide-ranging authority to carry out that role, when there is no real connection to the U.S., while human rights advocates have joined in to support that role so that there is some potential remedy for such abuses beyond any remedies in international crimes tribunals.   The U.S. government is straddling a bit between the two opposing factions.

SCOTUSblog has assembled the pertinent documents relating to  the case, including the new briefs for the petitioners and respondents:

Briefs and Documents

• Order for reargument and supplemental briefing
• Argument transcript from February 28, 2012
• Argument audio from February 28, 2012

Merits Briefs for the Petitioners

• Brief for Esther Kiobel et al
• Reply for Esther Kiobel et al.
• Supplemental Opening Brief for Esther Kiobel et al.

Amicus Briefs in Support of the Petitioners

• Brief of the United States
• Brief of Yale Law School Center for Global Legal Challenges
• Brief for the American Federation of Labor and Congress of Industrial Organizations
• Brief for International Human Rights Organizations and International Law Experts
• Brief for Arlen Specter et al.
• Brief for International Law Scholars
• Brief for Navi Pillay, the United Nations High Commissioner for Human Rights
• Brief for Ambassador David J. Scheffer
• Brief for Professors of Legal History Barbara Aronstein Black et al.
• Brief for the Rutherford Institute
• Brief for Joseph E. Stiglitz
• Brief for Law Professors of Civil Liberties and 42 U.S.C. § 1983
• Brief for Nuremberg Scholars Omer Bartov et al.
• Brief for the Brennan Center for Justice at NYU School of Law

Supplemental Amicus Briefs in Support of the Petitioners

• Brief for Yale Law School Center for Global Legal Challenges
• Brief for the American Bar Association
• Brief for Eleven Jewish Former Residents of Iran Whose Family Members “Disappeared”
• Brief for Navi Pillay, the United Nations High Commissioner for Human Rights
• Brief for the Rutgers Law School Constitutional Litigation Clinic
• Brief for Human Rights First et al.
• Brief for Genocide Victims of Krajina
• Brief for Volker Beck and Christopher Strasser, and Members of Parliament of the Federal Republic of Germany
• Brief for Victims of the Hungarian Holocaust
• Brief for Comparative Law Scholars and French Supreme Court Justice
• Brief for Thomas J. Schoenbaum, J.D., PhD.
• Brief for South African Jurists
• Brief for Professors of Legal History, Casto, Donahue et al.
• Brief for Professors of Legal History and Federal Jurisdiction
• Brief  for International Law Scholars
• Brief for Professor Juan E. Mendez UN Special Rapporteur on Torture
• Brief for Professors of Civil Procedure and Federal Courts
• Brief  for German Institute for Human Rights and International Law Experts
• Brief for the Association of the Bar of the City of New York
• Brief for the American Bar Association
• Brief for the American Federation of Labor and Congress of Industrial Organizations
• Brief for Ahmed et al. and the Center for Justice and Accountability
• Brief for the Government of the Argentine Republic
• Brief for Former United States Government Counterterrorism and Human Rights Officials
• Brief for Professor Alex-Geert Castermans et al.
• Brief for English Law Practitioners Martyn Day et al.
• Brief for Former United States Diplomats Diego Asencio et al.
• Brief for EarthRights International
• Brief for International Human Rights Organizations
• Brief for the American Civil Liberties Union

Supplemental Amicus Briefs in Support of Neither Party

• Brief for Nuremberg Historians and International Lawyers
• Brief for the United States in Partial Support of Affirmance
• Brief for the Law of Nations Scholars
• Brief for Former UN Special Representative for Business on Human Rights et al.
• Brief of the European Commission on behalf of the European Union
• Brief for Certain Plaintiffs in Re: Terrorist Attacks on September 11, 2001
• Brief for Governments of the Kingdom of the Netherlands et al.

Merits Briefs for the Respondents

• Brief for Royal Dutch Petroleum et al.
• Supplemental Brief for Royal Dutch Petroleum et al.

Amicus Briefs in Support of the Respondents

• Brief for BP America et al.
• Brief for the Cato Institute
• Brief for the Chamber of Commerce
• Brief for the Chevron Corporation et al.
• Brief for the Clearinghouse Association
• Brief for the Federal Republic of Germany et al.
• Brief for the Coca-Cola Company et al.
• Brief for KBR, Inc.,
• Brief for Professors of International Law
• Brief for Professors of International Law, Foreign Relations Law, and Federal Jurisdiction Law
• Brief for the Product Liability Advisory Counsel, Inc.
• Brief for the Rio Tinto Group and Occidental Petroleum Corporation
• Brief for the National Foreign Trade Council et al.
• Brief for the Governments of the United Kingdom and the Netherlands
• Brief for Professors of Constitutional Law
• Brief for The Associations of German Chambers of Industry and Commerce et al.

Supplemental Amicus Briefs in Support of the Respondents

• Brief for the Washington Legal Foundation and Allied Education Foundation
• Brief for the US-China Law Society
• Brief for the Cato Institute
• Brief for the Rio Tinto Group
• Brief for Professors of International Law et al.
• Brief for Professors Anthony J. Bellia Jr. and Bradford R. Clark
• Brief for OTP Bank
• Brief for the National Foreign Trade Council et al.
• Brief for KBR, Inc.
• Brief for Former State Department Legal Advisers
• Brief for Engility Corporation
• Brief for Chevron Corporation et al.
• Brief for the Chamber of Commerce of the United States of America
• Brief for BP America et al.

Certiorari-stage documents

• Opinion below (2d Cir.)
• Petition for certiorari
• Brief in opposition
• Petitioners’ reply
• Amicus brief of Center for Constitutional Rights et al.
• Amicus brief of Nuremburg Scholars Omer Bartov et al. (forthcoming)
• Amicus brief of International Law Scholars
• Amicus brief of Ambassador David J. Scheffer
• Amicus brief of Professors of Legal History et al.

This should be a fascinating oral argument.