A summary (in part):
[M]uch of the discussion of piracy law in ATS cases has been inaccurate or incomplete. Furthermore, the new attention to pirates should direct attention to their very own constitutional provision – the Define and Punish clause. This provision has important and unexplored lessons for current questions before the Court. This Article examines the relevance of “Piracies” – in the Constitution and at sea – for the questions before the Court in Kiobel.
Part I shows that the Constitution’s treatment of piracy limits one form of extraterritoriality, universal jurisdiction – so called “foreign cubed” suits – to offenses that, like piracy, are universally cognizable. Part II turns from constitutional limits to statutory interpretation, and the applicability of presumptions against extraterritoriality. Supreme Court piracy cases show that even for universally cognizable offenses, Congress must explicitly indicate that it wishes to extend such jurisdiction. Statutory references to international law do not make the presumption against extraterritoriality disappear. Part III examines what piracy law teaches about corporate liability. The civil remedies available against pirates bear little resemblance to corporate liability.
To the extent that we know the rationale behind the Alien Tort Statute, the prosecution of dastardly deeds on the high seas was certainly at least one motivation. Of that, we’re certain. Should be a good read.