Could anything be worse for alien tort claimants than arguing before a hostile Supreme Court on corporate liability, as the plaintiffs in Kiobel v. Royal Dutch Shell did last month? Yes: arguing before a hostile Supreme Court on extraterritoriality, as those plaintiffs will have to do next term, thanks to a surprise procedural order on March 5.
A broad ruling against extraterritoriality is more dangerous to plaintiffs for two reasons. First, it could bar suits against corporate officers and directors. Second, it could bar traditional alien tort suits against individual torturers and genocidaires.
