Author Archive for
Beth Stephens

Stewart Mini-Symposium: Two Cheers for Stewart

by Beth Stephens

[Beth Stephens is a Professor at Rutgers Law.]

Two cheers for James Stewart and his forthcoming article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. Stewart offers an enthusiastic endorsement of what could be an extremely effective mechanism to hold corporations accountable for egregious human rights abuses: domestic criminal prosecutions in their home states. Stewart’s comparative analysis of the Alien Tort Statute (ATS) is less sure-footed, however, and, for that failing, I withhold my third cheer.

Stewart ranges wide through criminal law theory and practice to defend the viability and desirability of domestic criminal prosecutions for international law crimes. He explains that many states already have the domestic statutes necessary to authorize criminal prosecution of domestic corporations for international law violations such as war crimes and crimes against humanity committed in other states. This statutory foundation, along with the focus on prosecuting domestic corporations, should mitigate concerns about extraterritoriality such as those that have arisen in both civil claims under the Alien Tort Statute and universal jurisdiction prosecutions against natural persons. Criminal prosecutions, he explains, also tap into a rich set of liability standards that are potentially well-suited to the complex interactions of a corporation and its employees.

Stewart correctly identifies some of the weaknesses of ATS litigation and the commentary it triggered. But many of those weaknesses result from applying an idiosyncratic eighteenth century statute to modern human rights abuses. For example, Stewart decries a rather unproductive dispute over the content of the international law standards governing aiding and abetting. He does not acknowledge, however, that the debate was triggered by the sui generis structure of the ATS, which grants jurisdiction over violations of international law, but provides no guidance as to a host of crucial issues, including the appropriate standards of liability. Moreover, commentators and some judges suggested applying a flexible federal common law liability standard to ATS cases, which might have resembled the analysis he favors. Many courts rejected that approach, however, leading to the narrow debate over the meaning of knowledge and purpose in international law. The “vociferous interest in complicity” that Stewart decries [24] was a product of the minimalist structure of the ATS and judicial decisions that further limited the range of possibilities, not lack of interest in or ignorance of alternative liability approaches.

Crucially, similar statutory gaps and judicial bottlenecks are likely to arise in domestic criminal prosecutions, as each legal system applies its particular statutes, procedural rules, and theories of liability. These problems, of course, are consequences of a domestic law response to human rights abuses. But, having failed to recognize the impact of its domestic law origins on the trajectory of the ATS, Stewart also fails to grapple with the likely impact of idiosyncratic domestic law variations on the local criminal prosecutions that he favors. (more…)

Kiobel Insta-Symposium: Closing Avenues for Relief

by Beth Stephens

[Beth Stephens is a Professor at Rutgers Law]

As a late-arrival to this Insta-Symposium, I find that many of my thoughts about the Kiobel opinion have already been expressed. Corporate defendants won an important victory in Kiobel, at least for foreign corporations with no more than a “mere corporate presence” in the United States. I had not predicted that the justices would be unanimous in rejecting the ATS claims in this case. But in the most important aspect of the decision, I’m not surprised that we fell just one vote short. Had Justice Breyer been in the majority, I would have found his list of factors permitting ATS cases to be a workable compromise. Since the Supreme Court has changed dramatically over the course of my legal career, I’m no longer surprised to lose cases by one vote. We all predicted that Justice Kennedy would provide the key vote, and the good news is that his short separate opinion left the plaintiffs’ side much to work with going forward.

I particularly appreciate Marty Lederman’s analysis of the divisions within the majority. As he points out, Justices Kennedy, Alito, and Thomas all stated that the decision left significant issues unresolved. The actual holding of the case is quite narrow. Many cases were stayed pending a decision in Kiobel, and I expect that lower courts will come to divergent decisions about which pending cases are still viable. Those disagreements may well require further Supreme Court review. For those of us who are litigators and scholars working in this area, that may be an interesting prospect. But for clients on both sides of these cases, it could be a disaster: years of litigation ahead, including in cases that have already been pending for years.

In this new post-Kiobel legal framework, I join with the contributors who have pointed to state courts as a likely venue for cases that can no longer be litigated in federal court. Most ATS cases have included related state law claims, and some have already been litigated in state courts. Doe v. Unocal, for example, was refiled in a California state court after a federal district court dismissed the ATS claims. The state court litigation continued while the Ninth Circuit heard the appeal, and the state case had been set for trial when the parties settled all of their claims.

Legal doctrine aside, I’ll take a moment to be cranky. Some members of the corporate bar are crowing about the resounding defeat of rapacious trial lawyers who used these cases to shake down virtuous multinational corporations. Let’s be real. Who has made more money from ATS litigation over the past 33 years: plaintiffs, plaintiffs’ lawyers, or defense lawyers? (I assume I don’t need to provide an answer to that rhetorical question.) If there was a moment in which private lawyers thought that filing ATS cases was a route to easy money, they were soon disabused of that notion. Plaintiffs’ attorneys have litigated most of these cases for years without payment — often with no possibility of collecting any fees.

I’ll throw out another question, which is surely more important than my thin-skinned crankiness: Is the world, or even the U.S. legal system, a better place as a result of this decision? I assume that we all recognize that some corporations around the world do bad things, along with their many good or neutral activities. I assume that we all agree that people who are hurt by an evil-doing corporation should have a means to seek relief, somewhere. But it must be apparent to all of us that the global legal system has no effective mechanisms to provide remedies to those who are injured by multinational corporations, hold accountable corporate bad apples, or deter future bad deeds. It may not be the obligation of the U.S. legal system to offer such relief, and it is certainly not the obligation of legal scholars or litigators to assume responsibility for the flaws of the global legal system. But perhaps we might pause for a moment to honor the people around the world who have been maimed and killed by above-the-law corporations, some of whom have just lost their only chance to obtain a remedy, before we proceed with our legal analysis of the Supreme Court’s Kiobel decision. In the absence of workable alternatives, I favor the pre-Kiobel world.

Kiobel Roundtable: The Devil in the Details

by Beth Stephens

[Beth Stephens is Professor of Law at Rutgers, the State University of New Jersey-Camden.]

Monday’s oral argument in Kiobel v. Royal Dutch Petroleum, Inc. focused on the search for a coherent limit to the reach of the Alien Tort Statute. The need for some limit is uncontroversial: even the most ardent advocates of human rights accountability agree that not all cases involving human rights violations, no matter how egregious, belong in U.S. courts.

The devil, as always, is in the details.

Would a holding that the ATS does not apply to claims arising in foreign countries constitute a coherent limit? The questions at the first Kiobel argument in February and the order for reargument issued the following week suggested that a majority of the Court was considering such a holding. At Monday’s reargument, however, this time with the benefit of full briefing on that issue, the questions indicated that the Justices had recognized that this apparently simple solution would pose its own problems, and that other doctrines might respond to some or all of their concerns.

A categorical bar on ATS claims arising in the territory of foreign states would require rejecting thirty years of ATS litigation, including the holding of Filártiga v. Peña-Irala. As Justice Kagan explained, it would also require abandoning the reasoning of the Court’s 2004 decision in Sosa v. Alvarez-Machain. Justice Scalia pointed out that applying the presumption against extraterritoriality would bar claims arising on the high seas as well as those arising in the territory of a foreign state, despite Sosa’s indication that the ATS was intended to apply to piracy, an international crime that occurs at sea. Sosa also relied on a 1794 opinion by U.S. Attorney General William Bradford, which stated that the statute applied to international law violations committed in foreign countries. The questions and comments at Monday’s argument suggest that the limit proposed in the order for reargument is neither coherent nor supported by statutory text, history, or precedent.

A categorical bar would be flawed for another fundamental reason: it would be an over-inclusive response to concerns about interference in the affairs of foreign states. International human rights norms both prohibit certain violent conduct and…

Samantar Insta-Symposium: The View From the Counsel’s Table

by Beth Stephens

[Prof. Beth Stephens of Rutgers Law School at Camden has litigated and written widely on related issues. Additionally, she served a counsel for one of the (victorious) respondents in the Samantar case.  We are of course honored that she is able to share her views with us. Again, a reminder that “Related Posts” will send you to a collection of all of the posts on this topic.] 

The Supreme Court decision in Samantar v. Yousuf put to rest to a line of Circuit court decisions that has baffled me for twenty years. Immunity for some foreign government officials for some official acts may or may not be good policy, but I’ve never understood the argument that such immunity could be found within the text of the FSIA. Moreover, the executive branch under multiple administrations, shared my reading of the statute – a level of support that has been rare in my professional career. 


The executive branch has also argued consistently over many years that common law immunity for foreign government officials survived passage of the FSIA. The Supreme Court in Samantar seemed to agree, but took pains to say very little about the scope of any such immunity. The Court acknowledged the existence of “specialized” or “position-based” immunities for diplomats, consuls and heads-of-state, and stated that “we do not doubt that in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official capacity.” The decision remanded the case to the District Court to consider any non-FSIA defenses, including whether Samantar “is entitled to immunity under the common law.”


Putting aside the issues likely to arise on remand in Samantar, a case on which I served as one of the counsel for the Respondents, a few points on where other cases may go from here:


Prior to Samantar, even in Circuits that followed Chuidian, the FSIA had not posed a significant hurdle to human rights cases because most cases followed the pattern of the lawsuit against Ferdinand Marcos, in which the Ninth Circuit applied Chuidian but found that Marcos’ acts of torture, execution, and disappearance “were clearly acts outside of his authority as President,” “were not taken within any official mandate,” and, as a result, were not protected by the FSIA.


A key issue for future cases will be to determine what law will govern the circumstances in which a suit will be deemed an “official capacity” suit for immunity purposes. Looking purely to the law of the foreign state, as interpreted by the government of that state, would pose a difficult conflict. I do not think, for example, that our courts will conclude that a foreign official accused of genocide can claim sovereign immunity based upon an assertion that, in committing the genocide, he or she was acting within the official policy of a foreign government. If the reach of official authority that will entitle an individual to assert immunity is governed at least in part by international law, government officials who have committed violations of widely accepted international human rights norms will not be protected by immunity. The Torture Victim Protection Act provides a model: The TVPA states clearly that some acts are tortious and subject to suit in U.S. courts when committed under color of foreign law.


Finally, the common law of immunity today is not necessarily identical to the common law of 1976. Since that time, relevant doctrines of U.S. law, domestic law in other countries, and international law have all evolved. Human rights norms have expanded greatly, along with international and domestic approaches to accountability. For example, statutory changes in the United States such as the TVPA would override pre-existing common law. Similarly, treaties and customary international law may impose obligations to hold accountable those who violate human rights that did not exist when the executive branch and the courts last addressed the immunity of foreign government officials.

Online Workshop Comment: The Future Impact of Sosa

by Beth Stephens

[Opinio Juris note: We are very pleased that Professor Beth Stephens of the Rutgers University School of Law at Camden, a leading scholar of the Alien Tort Statute, has offered to provide a reaction to the Bradley-Goldsmith-Moore Article and we post her thoughts in full below]

Ten years after publication of their first attack on the “modern position,” Professors Bradley and Goldsmith, now joined by Professor Moore, continue to undermine the strength of their argument by opposing exaggerated (and simplistic) categories – “the modern position” and the “revisionists.” Elsewhere, they acknowledge that the group they lump together as the modernists includes a range of views about the modern import of customary international law. One such view is amply supported by the Sosa decision: customary international law is a source of federal common law to be applied in appropriate cases. That is not to say that it is incorporated in toto into federal common law. But it does signify that it can be relied upon by the federal courts in a range of situations (some of which they identify in their article), that it is federal (not state) law, and that disputes about its interpretation raise federal questions.

That said, I’m more interested at the moment in their interpretation of the impact of Sosa on the ongoing Alien Tort Statute litigation. Two points here: First, they conclude that Sosa is a rejection of much of Filartiga and its progeny only by misinterpreting those cases. The Filartiga line of cases was a remarkably cautious set of decisions. The standard put forth by Sosa – claims must be “accepted by the civilized world” and “defined with…specificity” – comes directly from Filartiga, which required that claims “command the ‘general assent of civilized nations’” and be capable of “clear and unambiguous” definition. The cases use virtually identical language because both draw directly from Paquete Habana. In practice, application of this standard pre-Sosa led to the dismissal of most ATS claims, many of them for failure to state an international law violation that met its exacting requirements. But the standard also permitted a handful of important cases to proceed against defendants accused of truly egregious human rights abuses.

Second, their discussion of the application of Sosa to the current debate about corporate aiding and abetting liability is surprisingly thin. Step back for a minute. In what legal system do we hold liable the person who shoots the gun, but not the person who buys it and hands it to him, loaded and ready to shoot? U.S. and international courts and commentators have recognized this consistently, from the 18th century (see Blackstone’s discussion of accessories to piracy, for one example) to the 21st century (the administration recognized this in the context of a civil statute imposing liability for terrorist acts, urging the courts to interpret the statute to include aiding and abetting liability). Whether viewed as a matter of federal common law or widely accepted international law, complicity liability is surely part of the “tort” encompassed by the ATS. Finally, some disagreement about the standard to define aiding and abetting liability is not fatal: The paradigm case relied upon by Sosa to define piracy, U.S. v. Smith, recognized “a diversity of definitions,” but held that agreement about the core of the definition – “robbery, or forcible depredations upon the sea, animo furandi” – was sufficient.