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

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.