ATS Case Developments Post-Kiobel: Interpreting the "Touch and Concern" Standard

The past few months have seen a few interesting developments in cases in which Alien Tort Statute ("ATS") claims factor prominently. This judicial activity, much of which focuses on the significance of the presumption against extraterritoriality as applied to the ATS, is illustrative of some of the key questions that will inevitably arise as courts work to interpret and apply the Supreme Court's holding in Kiobel v. Royal Dutch Petroleum, Co.

In Kiobel,  the Supreme Court considered "whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law," and ultimately held (relying significantly on Morrison v. National Australia Bank Ltd.) that the presumption against extraterritoriality applies to the ATS.  Some uncertainty has resulted, however.  First, the ATS is described as a "jurisdictional statute," but the presumption articulated in Morrison and applied to the ATS in Kiobel appears to apply to a different type