Kiobel and Unattractive Legal Arguments Against Corporate Liability Under the Alien Tort Statute
I am participating this week in a discussion on Kiobel v. Royal Dutch Petroleum, the case on corporate liability under the Alien Tort Statute that will be argued tomorrow at the Supreme Court, at the Manhattan Institute’s Point of Law Blog. My interlocutor will be Professor David Weissbrodt of the University of Minnesota. Here is a snippet of my opening salvo:
I will use two recent op-eds on the upcoming case to launch our discussion. Each op-ed reflects how the disputants in Kiobel would like to frame their argument to the Supreme Court and to the public.
In the NYT, Peter Weiss, formerly of the Center for Constitutional Rights, focuses on the importance of the ATS in holding human rights offenders accountable and the general unfairness of excluding corporations from ATS lawsuits.
In the Washington Post, former Bush Administration State Department Legal Advisor John Bellinger, argues that ATS lawsuits are being used to harass corporations into settlements, to interfere with other nation’s domestic affairs, and to embroil the United States in disputes with important foreign allies like the United Kingdom, the Netherlands, and Germany.
I think Bellinger has a very strong argument (I have joined an amicus brief in this case making very similar arguments) and I haven’t seen the petitioners in this case or their amici make a very persuasive response to it. If the Supreme Court rules against the Kiobel plaintiffs, I am betting some version of this argument will be in the majority opinion.
But it is also noteworthy that Bellinger does not respond to Weiss’ claim about the unfairness of excluding corporations. He doesn’t do so because the “corporations are not liable under the ATS,” is the kind of rigidly formalistic argument that rarely succeeds at the Supreme Court and has almost no appeal to the general public. The NYT headline to Weiss’ op-ed, “Should Corporations Have More Leeway to Kill Than People Do?,” neatly captures the difficulty that the Shell defendants face in making this argument.
But just because the argument is unattractive, doesn’t mean it is wrong.
Please check out Point of Law for the rest of my post, and later on this week for Prof. Weissbrodt’s thoughts on the Kiobel question.