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Indiana Law Journal

Document Type

Note

Publication Date

Summer 2016

Publication Citation

91 Indiana Law Journal 1493 (2016)

Abstract

This Note will ultimately argue that, despite the expansive language in Kiobel, the Court’s reasoning does not necessarily foreclose all “foreign-cubed” claims. Suits alleging human rights violations originating from conduct that took place in failed states avoid the concerns the Court emphasized in Kiobel. The Court should allow jurisdiction for human rights offenses in failed states, despite their “foreign-cubed” nature, because the already existing rationale for allowing jurisdiction for international piracy offenses is highly analogous.

Part I of this Note explores the ATS jurisprudence leading up to and including Kiobel. Besides exploring the tensions and policy interests courts are grappling with, Part I also summarizes the various opinions in Kiobel. Part II investigates the concept of piracy as understood in ATS jurisprudence and argues that the concept can be analogized to human rights violations in failed states. Part III explains why extending jurisdiction to human rights claims in failed states avoids both the comity and foreign policy concerns the Court emphasized in Kiobel. Finally, Part IV details the strong interests the United States has in allowing jurisdiction in this limited context and discusses the efficacy of the ATS as a means of redress.

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