Sunset Walks with Fellow Tort Travelers

This past Friday I was privileged to host an intimate colloquium at Pepperdine’s Malibu Beach House that brought together a wonderful mix of torts scholars, international law scholars, and practitioners to address the nexus between torts and the Alien Tort Statute. It was an eclectic group, including renown torts experts such as Third Restatement Reporter Michael Green, Anthony Sebok, Allen Linden, and Rick Cupp, seasoned practitioners such as Ken Starr and Bob Mittelstaedt (who just successfully argued the Chevron Bowoto case), and international law scholars such as Chimene Keitner, Bill Dodge, Trey Childress, and Naomi Goodno. What better way to spend a beautiful Malibu day in mid-December then talking with diverse experts about torts and the ATS, punctuated by beachfront meals, and literally walking with fellow intellectual travelers down the sand during a glorious California sunset.

What was particularly interesting about the discussion is just how much the torts scholars had to say about the Alien Tort Statute. We labor in our own vineyards, yet almost every topic we discuss in the ATS context has already been discussed in the domestic torts context: Sovereign immunity, shared liability, proximate causation, contribution and indemnification, economic incentives between joint tortfeasors. For international scholars it is all fresh and exciting, but for the tort scholars it was, “Been there; Done that.” (The one great exception was with respect to aiding and abetting, which is not a well-developed doctrine in domestic tort law).

Take the issue of corporate liability under the ATS. The debate centers around the question of whether “intent” or “knowledge” should be the appropriate standard for aiding and abetting liability. Some scholars rely on the international criminal tribunals and opt for an intent standard. Others rely on federal common law and argue for a knowledge standard. The torts scholars were extraordinarily adept at discussing the differences between compensatory models under tort law and punitive models under criminal law. The discussion left me convinced that rather than rely on federal common law or the nascent law of international criminal tribunals to determine the appropriate standard for corporate accessory liability, we would far better off canvassing the tort laws of major countries to develop general principles of international law borrowed from municipal systems.

The other major insight from the colloquium is that ATS scholars need to interact with ATS plaintiff and defense practitioners with much greater frequency. Bob Mittelstaedt and his junior colleague David Wallach from Jones Day offered fascinating details about the Bowoto case. (Plaintiff lawyer Paul Hoffmann was invited but had to cancel at the last minute). We could have spent many fruitful hours listening to how the ATS played out in the Bowoto case. For me at least the big idea from that discussion was that the plaintiff bar in domestic torts cases is far more disciplined than the plaintiff bar in human rights cases. The plaintiff bar in domestic torts cases serve an important gatekeeper role by refusing to take significant risks on dog cases. The plaintiff bar in human rights cases is still testing the murky ATS waters, and they are motivated by factors beyond the fundamental question of whether they can win. ATS litigation is unusual in that it often is motivated by the pursuance of a cause, rather than genuine aspirations of success. And when lawyers can rely on third-party benefactors to pay their way, they can take great risks on weak cases.

Finally, the colloquium left me energized with the knowledge that international law scholars are living in an age of tremendous ferment. Contract law and tort law had their zenith in the twentieth-century, but both are now in a state of relative equilibrium. By contrast, we are living in an age of disequilibrium with human rights litigation. I would hazard that we will look back on these decades as the age when human rights exploded on the scene and finally, near the end of our careers, crystallized and reached a state of equipoise.