Suing Americans for Human Rights Torts Overseas: The Supreme Court Leaves the Door Open

In this author’s view, the concurring Justices are correct in allowing ATS suits against Americans for foreign torts. And contrary to narrow readings by some lower courts, even the majority’s rationale allows space for ATS causes of action for torts committed by Americans overseas. Kiobel was a suit by foreign plaintiffs, against foreign defendants, for foreign conduct. In that “foreign-cubed” case, the limited American jurisdictional interests at stake—mainly to afford redress for heinous international torts—were not enough to persuade the majority to overcome its presumption against extraterritorial application.

Nor were they enough to convince the four Justices concurring in the result that there were sufficient “distinct American interests” to justify ATS jurisdiction in that case.