We don’t know how to mind our own business.
‘Cause the whole world’s got to be just like us.
Now we are fighting a war over there
No matter who wins, you know we can’t pay the cost.
Some might say that John Kay’s musical biopic of American history is as true today as it was back in 1969 – only the location of "over there" having changed. But something else changed yesterday. The Supreme Court unanimously (albeit with diverse reasoning) cut back on the hubris reflected in the lower courts’ dramatic hyperextension of the Alien Tort statute, 28 U.S.C. §1350. See Kiobel v. Royal Dutch Petroleum Co., No. 10–1491, slip op. (U.S. April 17, 2013).
- The informed consent documentation was not read aloud to the study subject.
- The subjects or their guardians were not "alerted" to the drug’s risks and side effects (it’s an experimental drug; that’s what studies try to discover).
- The alleged availability of alternative treatments was not disclosed.
- The drug was administered orally even though oral absorption is difficult for sick children.
- Failure to conduct "regular blood tests" to identify side effects that warranted switching to alternative treatments.
- Not independently verifying whether this particular strain of meningitis was responsive to the drug before beginning the study.
Id. at 169-70 & n.2. While we agree that most, if not all, of these steps sound like good ideas, we hardly think that their absence equates a major drug company’s clinical trial of a potentially lifesaving product to Nazi war crimes. The court, however, had no trouble doing just that. Id. at 177-79. Throw in broad allegations of conspiracy with the Nigerian government, and presto – foreigners allegedly injured in a foreign country can bring suit in the United States under admittedly "nonbinding" platitudes that supposedly established the "law of nations." Id. at 181-82. We awarded Abdullahi the number two position on our bottom ten decisions for 2009.
Kiobel brings these fantastical uses of a 1789 statute directed against piracy on the high seas to a screeching halt. The statute can no longer be used to force the "whole world" to be "just like us" – as Steppenwolf might have put it. Instead, it does not apply to activities "occurring in the territory of a foreign sovereign." Kiobel, slip op. at 4. Rather, there’s a presumption that federal statutes are not intended to apply extraterritorially:
[W]hen a statute gives no clear indication of an extraterritorial application, it has none, and reflects the presumption that United States law governs domestically but does not rule the world. This presumption serves to protect against unintended clashes between our laws and those of other nations.