What If Federal Courts Close Their Doors to Human Rights Litigation?

[Donald “Trey” Childress is Associate Professor of Law at Pepperdine Law School.]

Let me begin by thanking my dear friend Roger Alford for inviting me to post on Opinio Juris. As Roger noted here Chris Whytock, Mike Ramsey, and I co-hosted a symposium on Human Rights Litigation in State Courts and Under State Law at UC-Irvine last Friday, March 2. Chris, Mike, and I came up with the topic a year ago as part of a transnational litigation symposium that Pepperdine hosted.

The topic was based on conjecture: what if ATS cases are limited by federal courts? Along the lines of that conjecture, I recently published an article with the Georgetown Law Journal regarding the next wave of transnational human rights litigation in state and federal courts under state and foreign law. The upshot of that article was that if federal courts begin to close their doors as a matter of substantive and procedural federal law to ATS claims, then what will happen if those human rights cases seek out other law (state/foreign) and other courts (state/foreign)?

This idea was further developed by the UC-Irvine symposium, which looked at the following topics: (1) why plaintiffs have not traditionally but might in the future plead these cases under state and/or foreign law; (2) what the federalism implications are in pleading in this way; (3) what the choice of law implications are; and (4) what the future will look like for transnational human rights litigation. In short, the panelists concluded that state and foreign law may well be a fertile ground for study. However, some panelists explained that the preemptive force of federal law may complicate the pleading of such cases under state law. As to choice of law, the conflicts scholars observed that in most cases the law of the state of injury will be applied, which might lead to forum non conveniens dismissals. However, to the extent U.S. domiciliaries are involved, there is some likelihood that U.S. state law might be applicable, which raises issue of due process, extraterritoriality, and preemption. In short, there were lots of new and interesting observations with the conclusion that articles remain to be written in this area.

This may all sound a bit academic. But, it is not. The Supreme Court’s order yesterday setting Kiobel for reargument and requesting supplemental briefing on the question whether the ATS can be applied to torts committed in a foreign sovereign’s territory may presage a very limited role for the ATS for extraterritorial torts. If the Court finds that the ATS is limited to torts committed on the high seas, like piracy, and to torts committed in the United States, (and thus not to torts in a foreign sovereign’s territory) then ATS litigation as we know it against corporations for harms occurring in foreign countries will be stopped. Such litigation will also be impossible against individuals. As such, pleading state and foreign law may be plaintiffs’ only hope of a day in court. But, with pleading such law, issues of federalism are raised about the appropriate allocation of sovereign authority over tortious activity that touches on foreign affairs, implicating the federal government’s necessity to speak with “one voice.”

In light of all of this, the UC-Irvine conference may have been both timely and relevant for what the Court ends up deciding regarding the ATS.