“It may be fair to say that Kiobel takes Justice Potter Stewart’s definition of obscenity and turns it on its head: rather than ‘I know it when I see it,” Kiobel gives us ‘I know it when I don’t see it.’ It tells us that the Kiobel facts do not satisfy the territorial nexus—I guess they don’t touch and concern U.S. territory with sufficient force— but … provides almost no guidance on which facts would.” Richmond School of Law Assistant Professor Andrew Spalding, blogging about the U.S. Supreme Court’s invocation of the presumption against extraterritorial application to determine that the Alien Tort Statute does not allow a foreign plaintiff to sue a foreign defendant in a U.S. court for conduct occurring in a foreign country.

PrawfsBlawg, April 18, 2013.