Seventh Circuit (through Judge Posner) Dismisses ATS Suit, But Affirms Corporate Liability

by Julian Ku

So I leave the country and the blogosphere for a few months, and what happens?  (Well, beside that “war” in Libya), circuit courts have gone all negative on my argument against corporate liability under the Alien Tort Statute.  In addition to the D.C. Circuit’s recent decision, the Seventh Circuit (speaking through Judge Posner) went out of its way to reject the argument while ultimately affirming the district court’s dismissal of the ATS lawsuit.

Posner is Posner, and it should not really be surprising that he would find a formal argument in favor of constraining judicial lawmaking powers unattractive.  To be sure, he genuflects to a new argument proffered by plaintiffs, claiming that because the post-WWII tribunals acted to dissolve some Nazi-supporting companies, the Nuremberg and associated tribunals provides authority for holding corporations liable under customary international law.  But that is not all that important to Posner’s argument, and he only devotes a single paragraph to that precedent.

Why does Posner ultimately reject the Kiobel no-corporate liability argument?  Although he is a bit unclear, I think his argument ultimately boils down to two conclusions.  One: there is no practical argument against holding corporations civilly or criminally liable under customary international law, and the lack of international authority on this question hardly undermines this practical point; Two: the question of corporate liability is ultimately one of procedure and enforcement and left to the discretion of domestic law.

I think Judge Posner is ultimately wrong here, but as usual, I find his analysis insightful and persuasive.  His analysis is not really that different, but a lot easier to follow than Judge Rogers’ lengthy decision in the D.C. Circuit.

I have more thoughts on this, but having really been back in the U.S. for less than 24 hours, it will have to await some more sleep.  In any event, these two decisions make it seem more and more likely that cert will be granted for Kiobel. And now that I’m back, surely it’s time for the no-corporate liability argument will make a comeback.

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