David H. Moore (Brigham Young University – J. Reuben Clark Law School) has posted Kiobel and the New Battle Over Congressional Intent (AJIL Unbound, 2014) on SSRN. Here is the abstract:
Transnational human rights litigation under the Alien Tort Statute (ATS) has been plagued by the overarching question of the domestic legal status of customary international law (CIL). Kiobel v. Royal Dutch Petroleum Co. is the Supreme Court’s second installment on the ATS. Like Sosa v. Alvarez-Machain4 before it, Kiobel does not expressly address the domestic legal status of CIL, but it does provide clues. Those clues suggest two insights: the Court views CIL as external to U.S. law, rather than as part of federal common law, and the role of CIL in future cases may be affected less by arguments about CIL’s status as federal common law than by arguments about congressional intent.