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I. INTRODUCTION ...............2
II. THE ALIEN TORT STATUTE ...............6
A. United States as Court of Universal Jurisdiction: Filartiga v. Pena-Irala ..............6
B. Sosa v. Alvarez-Machain: Narrowing the Class of Claims But Leaving Universal Jurisdiction Unfettered ..............7
C. Divining "Customary International Law " and Proper Defendants Post-Sosa ...............9
D. Enter Kiobel: Closing the Door to Universal Jurisdiction ..............12
1. Kiobelh The Path to the Supreme Court ...............14
2. Kiobel II: The Presumption Against Extraterritoriality and the "Touch and Concern" Paradigm ............15
E. Awt-Kiobel II: An Uncertain Way Forward .............18
1. Balintulo v. Daimler AG: A Cautionary Tale .........20
2. Al Shimari: Corporate Conduct Held to "Touch and Concern" the United States .............21
3. Mastafa: Corporate Liability Revisited .........24
F. ATS Jurisprudence: A Call for Clarity .........27
III. OTHER APPLICATIONS OF THE PRESUMPTION AGAINST EXTRATERRITORIAL APPLICATION OF FEDERAL STATUTES .............28
A. Federal Securities Laws .........28
B. RICO ..............30
C. Environmental Law .............35
IV. PERSONAL JURISDICTION ..........37
V. A NOTE ON PLEADING STANDARDS ........40
VI. PRACTICE SUGGESTIONS AS TO THE DEFENSE OF TRANSNATIONAL CLAIMS IN U. S. COURTS .........41
VII. CONCLUSION ..............42
I. INTRODUCTION
Along with increased integration between the economic and political worlds has come global litigation that is exceeding the bounds of any single jurisdiction-whether because the matters in dispute are inherently transnational or as a result of conscious, strategic decisions by the litigants. This "globalization" of litigation is, in part, a natural incident of a world economy that is evermore interconnected. And while there is nothing inherently wrong with litigants making choices among available legal systems to maximize their odds of success, concerns arise when litigants manipulate the global litigation system to obtain an unfair advantage. Such abuse often manifests itself as a species of "global forum shopping." Substantive and procedural mechanisms that liberalize the rules of law so as to tilt the playing field unfairly-coupled with litigants who improperly "play the system"-only exacerbate this practice in jurisdictions throughout the world.
The focus of this Article is the treatment of transnational litigation by the United States legal system, where forum shopping remains a genuine concern. As Lord Denning observed: "As a moth is drawn to the light, so is a litigant drawn to the United States."1 Plaintiffs from around the world seek the jurisdiction...