The pirates of the Caribbean are back—not in another fantastical film, but in the litigation over the reach of the Alien Tort Statute (ATS). For the first time since a wave of maritime predation in the Caribbean in the early nineteenth century, Supreme Court justices are seriously discussing the legal issues surrounding piracy. The crime has emerged as the test case for evaluating the major controversies about the reach of the ATS—namely, extraterritorial application and the existence of corporate liability. At oral argument in Kiobel v. Royal Dutch Petroleum Co., justices of all persuasions invoked piracy as a paradigm or precedent, as had the lower courts before them. When the Court surprisingly delayed its decision, and instead called for new briefing and argument on the extraterritorial scope of the statute, it became even clearer that the battle over the ATS would be a naval engagement; indeed, the briefs of the plaintiffs and numerous amici repeatedly refer to piracy as a paradigm.
This Article examines the questions before the Court in Kiobel: the relevance of “piracies”—in the Constitution and at sea—to extraterritoriality and corporate liability under the ATS. Much of the discussion of piracy law in ATS cases has been inaccurate or incomplete. Furthermore, the new attention to piracy should—but as yet has not—direct attention to pirates’ very own constitutional provision, the Define and Punish Clause, which contains implicit limits on extraterritorial and, in particular, universal jurisdiction over international offenses.