The Evidence of Things Not Seen: Divining Balancing Factors from Kiobel’s “Touch and Concern” Test
Ursula Tracy Doyle
Volume 66, Issue 2, 443-84
The long awaited Supreme Court decision in Kiobel v. Royal Dutch Petroleum raised the bar for human rights plaintiffs seeking redress under the Alien Tort Statute (“ATS”), a statute which provides jurisdiction in U.S. district courts for foreign nationals alleging a tort in violation of customary international law. Prior to Kiobel, the typical ATS case alleged atrocities against corporate actors based upon events that occurred largely, if not entirely, outside of the United States. In Kiobel, however, the Supreme Court held that the presumption against extraterritoriality applied to the ATS and that this presumption precludes claims brought pursuant to the statute unless they “touch and concern” the United States sufficiently to overcome the presumption. The Court, though, did not define “touch and concern,” implicitly inviting lower courts to do so.
This Article suggests that courts determine that a claim touches and concerns the United States pursuant to a multifactor balancing test drawn from inferences in the Kiobel majority opinion, stated preferences in Justice Breyer’s concurring opinion, and international jurisdictional norms more broadly. Despite Kiobel’s arrival, judges, advocates, and litigants now await clarification on the meaning of its “touch and concern” test. This Article endeavors to provide a cogent and practical interpretation.