So I leave the country and the blogosphere for a few months, and what happens?  (Well, beside that “war” in Libya), circuit courts have gone all negative on my argument against corporate liability under the Alien Tort Statute.  In addition to the D.C. Circuit’s recent decision, the Seventh Circuit (speaking through Judge Posner) went out of its way to reject the argument while ultimately affirming the district court’s dismissal of the ATS lawsuit.

Posner is Posner, and it should not really be surprising that he would find a formal argument in favor of constraining judicial lawmaking powers unattractive.  To be sure, he genuflects to a new argument proffered by plaintiffs, claiming that because the post-WWII tribunals acted to dissolve some Nazi-supporting companies, the Nuremberg and associated tribunals provides authority for holding corporations liable under customary international law.  But that is not all that important to Posner’s argument, and he only devotes a single paragraph to that precedent.

Why does Posner ultimately reject the Kiobel no-corporate liability argument?  Although he is a bit unclear, I think his argument ultimately boils down to two conclusions.  One: there is no practical argument against holding corporations civilly or criminally liable under customary international law, and the lack of international authority on this question hardly undermines this practical point; Two: the question of corporate liability is ultimately one of procedure and enforcement and left to the discretion of domestic law.

I think Judge Posner is ultimately wrong here, but as usual, I find his analysis insightful and persuasive.  His analysis is not really that different, but a lot easier to follow than Judge Rogers’ lengthy decision in the D.C. Circuit.

I have more thoughts on this, but having really been back in the U.S. for less than 24 hours, it will have to await some more sleep.  In any event, these two decisions make it seem more and more likely that cert will be granted for Kiobel. And now that I’m back, surely it’s time for the no-corporate liability argument will make a comeback.

I’ve now had a chance to read a little more closely the decision, majority and concurrence, in Kiobel v. Royal Dutch Petroleum (issued today by a 2nd Circuit panel of Judge Cabranes writing for himself and Judge Wood, and a concurrence in the judgment by Judge Leval).  On second reading, it still looks to me like a blockbuster opinion, both because of the ringing tone of the Cabranes decision and the equally strong language of a concurrence that, on the key point of corporate liability, amounts to a dissent.  With circuits having gone different directions on this issue, this perhaps tees up a SCOTUS review that would revisit its last, delphic pronouncement on the Alien Tort Statute in Sosa v. Alvarez-Machain. Here are a few thoughts that add to, but also partly revise and extend, things I said in my earlier post today. (more…)

[I posted this about the same time that Ken posted his discussion of the same case below, which is definitely worth reading. Please forgive any repetitions. But we are both on the same page.]

In a blockbuster opinion that could spell the end of the vast bulk of Alien Tort Statute litigation, the U.S. Court of Appeals for the Second Circuit has held that corporations cannot be liable for violations of customary international law under the Alien Tort Statute.  The decision, Kiobel v. Royal Dutch Petroleum, dismisses an ATS lawsuit against Royal Dutch Shell for allegedly aiding and abetting the Nigerian government in the commission of serious human rights violations.  Writing for two members of the panel, Judge Jose Cabranes held that (in my very quick and dirty summary):

1) International Law governs the scope of liability for violations of international law, hence the question of whether a corporation is liable for violating international law is itself governed by international law.

2) Under Supreme Court precedent, the Alien Tort Statute requires courts to apply norms of international law, and not domestic law, to the scope of defendants’ liabilities. Such norms must be “specific, universal, and obligatory.”

3) Under international law, corporations are not liable for violations, and any such norm of corporate liability is far from “specific, universal, and obligatory.”

I should note that one judge on the panel, Pierre Leval, took sharp exception to this holding in his concurring opinion. It is worth noting that his criticism is not on the question of whether corporations are liable for violations of international law, but whether international law should even govern this question.

I have an article coming out later this fall in the Virginia Journal of International Law which takes the same position on this question as Judge Cabranes. So I am both pleased that someone agrees with me, and horrified that I may have to seriously revise and update that article. Judge Cabranes’ analysis is very strong on points two and three above.  Indeed, I don’t think Judge Leval or the plaintiffs in this case seriously challenged these points.  The only bone of contention is with point one, whether international law is indeed the governing law for the question of corporate liability. And I assume that will be the main issue if this case (as I fully expect), an appeal to the U.S. Supreme Court is made to this decision.

But taking a step back, what I find fascinating is that there appears to be no serious argument left that customary international law can impose duties on private corporations.  I think this is right, and foreign academics, most notably James Crawford, have strongly rejected corporate liability.  But I think the vast weight of U.S. legal academic opinion has gone the other way on this point.  I have personally participated on at least three conferences where I was the only one arguing against corporate liability.

In any event, I will have more thoughts about this case and this issue soon. There is a lot here to digest and think about.  The bottom line for litigants though:  The wave of ATS lawsuits against corporations is, at least for the moment, DEAD in the Second Circuit.  And I wouldn’t feel good about ATS suits in other circuits either.

I don’t know about this lawsuit, presumably filed under the Alien Tort Statute, but it should be interesting.*

A Northwestern University law professor has sued the Hungarian State Railways on behalf of Jews deported to camps during World War II.

Anthony D’Amato, who teaches international law, is seeking compensation for property stolen from Hungarian Jews, the Chicago Tribune reports. In a brief filed last week in federal court in Chicago, D’Amato said the state railways were complicit in the Holocaust and that Jews leaving Hungary for Auschwitz and other concentration camps had to leave their suitcases behind when they were loaded into boxcars.

My prediction: this suit goes nowhere. But maybe I should take a look at the complaint first. Does anyone have a copy by any chance?

*UPDATE: Thanks to reader C. Jenks for a copy of the complaint here.  It is pretty well done (it even includes photos). But it faces some serious obstacles.  One interesting problem: the lawsuit is against a state-owned corporation, and the idea is that this state-corporation’s immunity has been waived by the Foreign Sovereign Immunities Act. This is a tricky argument, and I expect this to be the main focus of the dissent.

An additional puzzle about the Alien Tort Statute is that there seems to be no satisfactory account, so far as I know, of the US government response to ATS cases.

Sometimes the US government responds with a statement of interest; sometimes it does not.  Even when it does offer a statement of interest, my anecdotal impression (if there was data collected, I’d be very interested) is that the US government often responds late in the proceedings.  So far as I can tell – indeed, I’ve never heard anyone contradict this – there is very little about the USG response in ATS proceedings to suggest that it seeks to protect executive power or authority or authoritative expertise in pronouncing on international law or the foreign policy interests of the executive in ensuring, as a matter of principle, that these matters remain with the executive and not the courts.  There is little if anything in USG behavior to suggest that successive administrations since Filartiga have taken a stand on principle of seeking to rein in or otherwise narrow the ambit of the courts in these matters.  That seems to be true across decades and multiple administrations of each party.  I find this puzzling …

If I were to sit down and sketch out in a single sentence or two each the current approaches (“theories” is way too strong for what I mean here) to finding corporate liability in the ATS, what would they be?  I give it a shot as bullet points below; I welcome any additions, if you were trying to give a short but reasonably comprehensive list of litigation approaches in favor of finding the possibility of corporate liability.

One thing I (can’t speak for others) took away from the Harvard meeting, as well as discussions with some litigators in the area, is that the question is not settled in US courts.  Sosa left it open in footnote 20, and although I would have described the leading circuit cases as having accepted the idea, I came away from various discussions with a sense that it is more open to a change in direction than I thought – and that, even absent a new Supreme Court ruling on the matter.  My sense after the latest Talisman was that US courts had more or less accepted corporate liability under the ATS, signing on to an accumulation of precedents without signing onto a theory of why.  Reining in ATS liability, insofar as they were inclined to do it, would come either as limits on what substantive acts would count or else, as in the 2nd Circuit’s latest Talisman ruling, as limits on secondary liability.  But I came away from recent discussions with an inchoate sense – not a clear set of reasons – that the corporate liability issue itself was not so settled as I might have thought.

Whether that is so or not, it made me think that having some bullet point list in my head of the main lines of argument in favor of corporate liability was a useful exercise.  Feel free to add any more you like in the comments.  The reason I stress here arguments in favor is that, as someone who thinks it is not the case, it is harder for me to think of the arguments for corporate liability.  The affirmative arguments against corporate liability seem to be mostly variants of saying, the ATS requires as a threshold matter that there be a violation of international law.  Corporations are not things that are capable of violating international law, and there can’t be a violation without a violator upon which law imposes liability; hence no violation of international law and no US action in tort.

The principal way of complicating this as an argument against corporate liability is to say, in addition:  There are two hurdles to finding an international law violation – two axes, if you like.  You have to make the move from individual to corporate liability.  Separate and independently, you have to make the move from criminal law to civil law.  Neither one of these is well founded in international law, and you have to satisfy each in order to show an international law violation.  (Represented as a diagram, the two axes produce four quadrants and it’s fun to frame it that way, but I’ve not managed to figure out how to do graphs like that on Wordpress.)  One might disagree with those axes, of course, but they are what I think I see in defense arguments (including my own expert declaration in the Agent Orange case) and defense-side expert statements, at least disaggregating a bit.  There is then a long debate over what to take as constituting “international law” and evidence thereof, but leave that aside.  That said as the basis of anti-corporate liability arguments, what’s the summary list of pro-corporate liability arguments? ….