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The Alien Tort Statute and Corporate Liability: Looking Ahead to the Supreme Court Decision in Kiobel

By: Maria Florencia Librizzi[*]

The Supreme Court will soon decide the fate of litigation seeking to hold U.S. corporations accountable under the Alien Tort Statute (ATS) for aiding and abetting human rights abuses overseas. In September 2010, the Second Circuit held in Kiobel v. Royal Dutch Petroleum that the statute did not apply to corporations.[1]  Since then, several other circuits have ruled otherwise, leading the Supreme Court to grant certiorari in Kiobel in October 2011. Oral argument is scheduled for Tuesday, February 28.[2]

The outcome of this case will be profoundly important. If the Court affirms the Second Circuit’s majority opinion, alien victims will no longer be able to sue corporations under the ATS. In many cases corporations will be free to profit from overseas human rights violations, while safeguarding their assets against compensation claims.[3]

Looking ahead to the Court’s decision, I summarize below the evolving jurisprudence of the ATS, including the circuit split over the statute’s applicability to corporations and the mens rea standard for aiding and abetting liability. If the Court limits itself to the Questions Presented in the certiorari petition, it will decide only whether the ATS applies to corporations. However, the Court may also resolve other points of contention among the circuits, including the mens rea standard for aiding and abetting liability. After reviewing the case law, I conclude with several arguments—instrumental, descriptive, and policy—in favor of recognizing corporate liability under the ATS.

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Our New Summer Issue (43:4)

Our summer 2011 issue is now available online at our official NYU website. Margaret L. Satterthwaite, Indicators in Crisis: Rights-Based Humanitarian Indicators in Post-Earthquake Haiti, 43 N.Y.U. J. Int'l L. & Pol. 865 (2011). Doreen Lustig, The Nature of the…

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Welcoming a new staff

The NYU Journal of International Law and Politics is pleased to introduce the members of its 2010-2012 staff.  As a student-run journal at the best international law program in the U.S., JILP provides a unique opportunity to become acquainted with the rich world of international law scholarship.  Welcome aboard!

Like many student-run journals in the U.S., the Journal of International Law and Politics selects its staff through an anonymous process that evaluates their knowledge of and experience with international law, their writing and editing skills, and their academic performance.  This year saw particularly fierce competition for the limited number of spaces on our staff, and we couldn’t be more pleased with the results.  Hit the jump for the names of our new staff editors, and vist the About page for the complete masthead.

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