[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.