22 Apr U.S. Supreme Court Holds that Corporations Can Be Immune from Claims of Torture Under Domestic U.S. Law
One of the most popular arguments made against the Second Circuit’s interpretation of the Alien Tort Statute in Kiobel v. Royal Dutch Shell is essentially a policy argument:
How could it be possible for Congress to have intended to allow corporations to immune from claims of serious international law violations while at the same time allowing individuals to be liable?
This policy argument, I pointed out here, makes the respondents’ legal position in Kiobel singularly unattractive. The Supreme Court’s unanimous decision, however, last week in Mohamed v. Palestinian Authority makes this argument a little less unattractive. In Mohamed, the Court held, 9-0, that the the Torture Victim Protection Act’s use of the term “individual” does not permit claims against organizational entities like the Palestinian Authority. Although the Court does not explicitly say so, this would also shield corporations from TVPA lawsuits.
As Michael Ramsey notes at the always intelligent Originalism Blog, this decision is another triumph of statutory textualism over all possible methods of statutory interpretation. The Court’s unanimous embrace of statutory textualism, he notes, came despite some quite persuasive purposive or policy based interpretations made by the petitioners. Indeed, the Court acknowledged that it is possible that the “Act would be rendered toothless by a construction of “individual” that limits liability to natural persons….But [such limitations] are ones that Congress imposed and that we must respect.”
The Kiobel Court may not ever reach the corporate liability issue, but if they do, Mohamed should offer respondents some cover for their positions. To be sure, the ATS is a different situation because it offers no textual guidance at all on the corporate liability question. Courts are left to ponder whether implying corporate liability would fit within their ATS federal common law making powers. The Supreme Court has instructed them, in Sosa, to limit their use of international law to only those most universal and uncontroversial norms.
Whether corporate liability is one of those international norms has been the main field of dispute in the Kiobel briefing. But even if it is not an international norm, the court still faces the question as to whether Congress would have wanted to imply a cause of action against corporate entities. The answer is not all that clear. They might have wanted to include corporate entities within the ambit of the ATS, but, as was the case in the TVPA, they very well might not have gone the other way.
Response…
Hhhmmmm, would “statutory textualism” cause activist judges to refrain from reading into the ATS limitations that Congress did not choose? Where within the ATS does the text state that corporations are immune from its reach? Where within the ATS does the text state that the ATS does not apply to alien defendants? Where within the text of the ATS does it state that the ATS does not apply to conduct abroad? Since 20 Supreme Court cases have already recognized that corporations and companies can have duties and rights under treaty-based and customary international law, I suppose that statutory textualism will preclude activist attempts to re-write the statute to, for example, add a word that Congress never chose, such as “individuals.”
Prof. Paust,
I believe the argument against extending the jurisdictional reach of the ATS to foreign-cubed cases ultimately stems from background statutory canons of construction–a standard common-law approach. One could also argue that the purposive approach maligned by Prof. Ramsey’s blogpost also evinces a purpose by the First Congress to provide a way into court for those private law-of-nations violations that would relate to the United States (as those would lead other countries to have a right of reprisal against the United States).
You’re correct, of course, that the neo-textualist approach of simply looking at the words in the statute should not preclude any of the above scenarios you outlined.