A Test By Any Other Name: The Influence of Justice Breyer\u27s Concurrence in \u3ci\u3eKiobel v. Royal Dutch Petroleum Co.\u3c/i\u3e

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application to the Alien Tort Statute (“ATS”). In doing so, the Court undermined the generally accepted view of the ATS: that it could apply to actions abroad. Applying this presumption severely limited the factual circumstances that could produce a viable ATS claim. The majority opinion carved an exception, permitting extraterritorial ATS claims that “touch and concern” the United States, but declined to set more specific guidelines. In the absence of such guidelines, lower courts have applied the presumption in an overbroad fashion, barring claims that the Court might have intended to fall within its exception. However, concurring in Kiobel, Justice Breyer offered an alternative three-pronged test to determine jurisdiction. Though Justice Breyer reached the same conclusion as the Court—that jurisdiction did not lie—his test is more specific than the majority’s and also provides lower courts with a proper means of assessing ATS extraterritoriality. This Note first extensively discusses the rich and colorful history of the ATS, tracking its outgrowth from the Articles of Confederation to its use in the eighteenth century to bring pirates to justice. It then discusses the modern line of ATS cases, including the various procedural elements that courts have read into the Statute. Turning to Kiobel, it examines the impact of the Court’s reversal of precedent by applying a presumption against extraterritorial application to the ATS, specifically focusing on the majority standard’s lack of clarity. This Note concludes by proposing that the best way to reasonably limit the ATS’ scope while still allowing meritorious claims to proceed is to use Justice Breyer’s test