Kiobel Roundtable: Who’s Afraid of Transitory Torts? Thoughts on Kiobel II

[Chimène I. Keitner, is a Visiting Professor of Law at the USC Gould School of Law and Professor of Law, University of California Hastings College of the Law.]

Personal jurisdiction ain’t what it used to be. As Justice Ginsburg noted (Tr. at 54), in the age of Goodyear Tire, multinational corporations can’t necessarily be sued everywhere for everything. But Shell’s message at oral argument on Monday was clear: we don’t want to rely on Goodyear Tire or on any other rule that gives a U.S. judge discretion over whether or not an ATS case goes forward. We want a categorical prohibition, period.

It’s fascinating listening to judges worry about the consequences of letting judges make decisions. Some of them seem downright determined to ensure their own irrelevance. They say: listen to Congress.

In this case, Congress spoke. It didn’t say very much. But Congress said that cases brought by aliens for international law violations should be brought in federal court, not state court. Shell wants to send them back to state court (Tr. at 32).

In Ackerson v. Erie R. Co., 31 N.J.L. 309, 310-11 (1865), the New Jersey Supreme Court stated that “[i]t is, in the international code, the well established doctrine, that every nation may rightfully exercise jurisdiction over all persons within its domains, with regard to matters purely personal,” and that transitory actions “are universally founded on the supposed violation of rights, which, in contemplation of law, have no locality.” This case didn’t come up in oral argument, but the language nicely captures the idea of transitory torts, which was familiar to the founding generation. The full implications of the transitory tort model – called “universal civil jurisdiction” when international law rather than local law supplies the applicable conduct-regulating rule – troubled Justice Kennedy. He wondered whether “if a U.S. corporation commits an international law violation in the United States, that U.S. corporation can be sued in any court in the world?” (Tr. at 5). The answer is no, as long the injured parties can pursue meaningful redress in the United States. If there is no meaningful redress, and the injurious conduct is universally condemned, other courts with personal jurisdiction over the responsible parties should be able to fill the gap.

Entertaining this possibility means rejecting Shell’s categorical rule that federal courts cannot entertain claims for any causes of action arising outside the territorial United States. It also means rejecting the United States’s suggestion prohibiting actions against foreign accomplices but allowing them against “actual perpetrators” (Tr. at 42) – a shaky distinction that seems to read accomplice liability out of international law altogether. (As I noted back in 2007, corporations have been sued as direct perpetrators, and natural persons have been sued as accomplices. See Conceptualizing Complicity in Alien Tort Cases, at n.9.) If the United States wants to preserve Filártiga while avoiding future Kiobels, reading an “actual perpetrators” requirement into the ATS is not the way to do it.

Would I recommend a “no holds barred” approach to ATS suits going forward? No. As much as I hate to see the corporate cases make bad law for the fugitive dictator cases, the fact is that actions taken on behalf of corporate entities can cause significant harm. As U.S. domestic law recognizes, the deterrence and restitution functions of tort liability cannot always operate effectively if the buck stops with individual agents. That said, the lack of success at trial to date of cases against corporations should give attorneys pause in continuing to file these cases. In an ideal world, the brain-power that has been poured into corporate ATS litigation could be channeled instead into constructive engagement with corporations about how to build profitable businesses without decimating local communities. If corporations would modify their practices without the threat of litigation, the ATS would become superfluous.

The concern with offending foreign countries can be dealt with largely through what Sosa referred to (in the infamous footnote 21) as “case-specific deference to the political branches.” Deference does not mean obsequiousness, but it does mean due regard. As in the sovereign immunity field, there remains a need to balance the vindication of individual rights with the preservation of peaceful and constructive foreign relations. Courts are part of this process. In this sense, debates about the ATS are proxy wars for ongoing debates about the role of tort litigation as a regulatory tool and the role of courts in providing private remedies. On these issues, the battle lines are drawn.