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Ken Turchi
IU Maurer School of Law

Last modified: Tuesday, October 2, 2012

IU expert: Recent limits on lawsuits should not apply to case before the Supreme Court

Oct. 2, 2012

BLOOMINGTON, Ind. -- In recent years, the Supreme Court has dramatically curtailed the involvement of U.S. courts in deciding claims arising from activities outside its borders. According to an IU Maurer School of Law expert on the subject, however, an appeal currently before the court calls for a different result.

On Monday, in Kiobel v. Royal Dutch Petroleum, the court heard oral arguments on whether the Alien Tort Statute allows U.S. courts to recognize a cause of action for violations of international law occurring outside the United States.

Hannah L. Buxbaum

"Most cases dealing with the extraterritorial application of law have involved the application of U.S. regulatory law to foreign matters," said Hannah L. Buxbaum, interim dean and John E. Schiller Chair in Legal Ethics. "In cases involving antitrust, securities and labor issues, the court has been clear that domestic regulatory law cannot be applied to foreign conduct that does not cause specific effects within the United States. This might suggest that the court should limit Alien Tort Statute cases as well."

However, Buxbaum cautioned that the Kiobel case is very different from the recent business regulation cases.

"There are big differences between violations of domestic regulatory law and violations of international law," she said. "The conduct alleged in Kiobel -- killings and other atrocities in an effort to suppress resistance to oil exploration in the Niger Delta -- involves violations of international law."

As such, Buxbaum said, it does not raise the usual concern about extraterritoriality.

"The central objection -- that one nation might substitute its own policy choices and laws for those of another nation -- does not apply when violations of international law are claimed," she said.

An expert on international law and extraterritoriality, Buxbaum has written extensively on the subject. Her research was quoted by the U.S. Supreme Court in Morrison v. National Australia Bank in 2010 (considering extraterritorial application of securities law), and she filed an amicus curiae brief in Hoffmann-LaRoche Ltd. v. Empagran S.A., which considered the same question with respect to antitrust law. She is available to discuss Kiobel and can be reached at 812-855-8886 or