Kiobel (III): Universality as a Constitutional Question

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law]

The extraterritoriality analysis starts with piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status.

Piracy was not any old international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time.

Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Northwestern University Law Review 149 (2009)). There is evidence for this not just in the structure of the clause, but in grand jury instructions of Wilson and Story, the pronouncements of Marshall, and important judicial and Congressional precedents from the early Republic. For example, in U.S. v. Furlong, the Supreme Court in 1820 found that a statute that purported to punish “murder” by “any person” on the high seas does not apply universally because it is not a UJ crime.

Because murder was not universally cognizable, such “an offense committed by a foreign upon a foreign ship” is a matter in which “Congress ha[s] nor right to interfere.” The Court suggested this limitation was Constitutional, noting such universal regulation would exceed “the punishing powers of the body the enacted it,” i.e. go beyond the Define and Punish clause. Or as Marshall put it in 1800: “[T]he people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government.” (more…)

Kiobel (II): Universality, Not Mere Extraterritoriality

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law]

The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those “Piracies” and “Offenses” that have UJ status in international law. But Congress has not “defined” any offenses in the ATS. It delegated the task to the courts, but the courts must use this mandate narrowly and cautiously, as the “Define” power was given to Congress precisely because international law was too “deficient and vague” to be a common law rule.

Lower courts have discussed the application of the Alien Tort Statute to so-called “foreign cubed” cases – where the parties are foreigners and the conduct takes place abroad – as a matter of extraterritoriality, a term that suggests the presumption of statutory construction against extraterritorial application. While there is a presumption against extraterritoriality, the application of U.S. law to conduct abroad is not uncommon. Yet even the most controversial or aggressive use of extraterritoriality typically involves the regulation of American conduct abroad, or at least conduct that has substantial effects in American or on particularly American interests. But this is not the extraterritoriality of Kiobel, which like many ATS cases have no connection to the U.S. whatsoever. Such universally extraterritorial scope is certainly only found in the face of the clearest statement of congressional intent, such as in the unusual Maritime Drug Law Enforcement Act.

Universal jurisdiction, of the kind asserted in Kiobel, is exceedingly rare and poses much greater problems than mere extraterritoriality. It raises the question of where the federal government, supposedly one of limited powers internally, gets the authority to regulate conduct with no domestic nexus, and have federal courts sit as little world courts.

As shall be seen, Supreme Court precedents clearly apply presumptions of extraterritoriality to statutes dealing with international law violations, even universal ones. Some have argued that the Supreme Court implicitly OK’d ATS extraterritoriality in Sosa v. Alvarez-Machain, its previous major encounter with the statute. Sosa itself involved conduct in Mexico –but it was the abduction from that country by the D.E.A. and its local contractors of a man involved in torturing a federal agent to death, so that he could stand trial in the U.S. Foreign-cubed that is not: few cases could have a tighter nexus with America.

In the oral arguments on corporate liability, Justice Ginsburg suggested that Sosa OK’d extraterritoriality by citing favorably Filartiga, the break-out 1980 Second Circuit case that turned to the ATS into a tool for human rights litigation. Sosa quoted Filartiga’s famous analogy between modern human rights UJ and its precursors: “the torturer has become-like the pirate and slave trader before him-hostis humani generis, an enemy of all mankind [a phrase that was law of nations shorthand for piracy’s universal cognizability].” Never mind that piracy serves as poor model for modern UJ; Sosa’s quote from Filartiga is hardly decisive. The issue was not before the Court, and secondly, it could be that the ATS allows for UJ for a few norms like torture, but perhaps not for others like extrajudicial killing.

Kiobel (I): ATS Arguments Make for Strange Bedfellows

by Eugene Kontorovich

[Eugene Kontorovich is Professor of Law at Northwestern School of Law]

Today the Supreme Court takes on the scope of the Commerce Clause in the historic healthcare cases. The case raises the question of whether there are any substantive limits to the federal government’s domestic regulatory power. But another case soon to be (re)argued before the Court, Kiobel v. Royal Dutch Shell, manages to raise an even broader question: Are there any substantive limits to the federal government’s power to regulate matters occurring outside and having nothing do with the United States? Surprisingly, the latter question has not been generally regarded as a constitutional one.

The Supreme Court has expanded the issues under consideration in Kiobel, originally about corporate liability under the Alien Tort Statute, to include the extraterritorial application of the law. Like corporate liability, extraterritoriality had for decades just been assumed by the lower courts hearing ATS cases: now it will be fully explored.

These posts cross-posted on Volokh Conspiracy, will focus on the constitutional/federal courts issues involved, and of course explore the early piracy precedents of the Supreme Court to get traction on the issues. In short: before thinking about the ATS, one must consider the constitutional basis for universal jurisdiction – which is quite narrow. Furthermore, there are some good reasons derived both from the constitution and precedent for interpreting the ATS narrowly, as not exercising whatever universal jurisdiction power the federal government does have.

Before turning to the merits, it is amusing to note the strange bedfellows ATS doctrine makes. The litigation and accompanying academic debate over the meaning and scope of the Alien Tort Statute has been a marvel of surprising ideological transpositions, and more reversals of traditional roles than All’s Well That Ends Well. On the issue of corporate liability, liberals (crudely speaking) urge the Court look to parochial U.S. law, and conservatives (still crudely speaking) favor the adoption of a rule from international law and practice. Then the Court asks for new arguments on extraterritoriality. Now the conservatives point to U.S. law – the judge-made presumption against extraterritoriality – and liberals point to the international status of the offenses. It is like a game of Twister.

Neither position is fully correct. There may be a place for extraterritoriality in ATS cases, but in a much narrower class of cases then where it is currently applied. The following two posts will draw on much of my prior work, and I hope the reader forgives me not recapitulating the entire argument of those articles here.

The ATS and Extraterritoriality

by Anthony Colangelo

[Anthony J. Colangelo is an Assistant Professor of Law at SMU Dedman School of Law]

I suspect the extraterritoriality issue has taken on renewed significance after the Supreme Court’s decision in Morrison v. Nat’l Aust. Bank, which, as many readers know, addressed the extraterritorial reach of the Securities Exchange Act. According to the Court in Morrison, “When a statute gives no clear indication of an extraterritorial application, it has none.” The question now is whether this reinvigorated presumption applies to the ATS. 

In a recent article in the Virginia Law Review, I argued that the ATS and other statutes that implement or authorize the implementation of international law (like statutes enacted pursuant to the Offences Clause or that implement treaties) are distinguishable, and that the presumption against extraterritoriality should not apply to them. The principal rationales behind the presumption, according to the Supreme Court, are to avoid discord resulting from “clashes between our laws and those of other nations” inside foreign territory and to heed the assumption that when Congress legislates, it does so with only domestic concerns in mind. But unlike the Exchange Act—which would involve the projection of a U.S. norm into foreign territory—statutes that implement international law purport to apply a law that is also applicable inside the foreign territory. Concerns about extraterritorial applications of U.S. law conflicting with foreign law inside foreign territory thus largely disappear, since the U.S. law by nature will not conflict with the international law also operative inside the foreign territory. Moreover, while the conventional assumption that Congress legislates with only domestic concerns in mind may make sense for statutes reflecting national values and preferences, that assumption holds far less intuitive force when Congress implements international law—which, after all, deals by definition with foreign nations and shared values and preferences with those nations. Morrison also explained that courts could consider “context” in determining whether a statute has extraterritorial application; here the context is that the statute authorizes application of international, not domestic, law. And in that connection, the relevant canon of construction should be Charming Betsy, which would allow and even encourage extraterritoriality in some cases, even where there is no U.S. connection (as in universal jurisdiction). In other words, when Congress authorizes application of international law, it should be presumed to authorize application of all of international law, including the relevant international law of jurisdiction, which may contemplate extraterritoriality.

This argument could prove attractive to the Court in Kiobel for a couple of reasons: (1) It would allow the Court to decide Kiobel consistently with Sosa and other pre-Morrison cases like Filartiga that have already endorsed, whether affirmatively or by implication, the application of the ATS to foreign conduct and harms. The argument would thus save the ATS from the post-Morrison presumption against extraterritoriality. (2) It also would effectively resolve the corporate liability question without having to necessarily resolve the gnarly choice-of-law question. If, as petitioners had requested, U.S. courts use domestic principles of corporate liability under the ATS, courts would then be applying U.S. norms inside foreign territories in a way that could create conflicts of laws and friction, thereby triggering the presumption against extraterritoriality as to those U.S law principles of liability. The result would be that the ATS still allows suits alleging conduct and harms inside foreign territory, but only to the extent courts faithfully apply extant rules of international (not domestic common) law.

One More Kiobel Post: The Importance of Sosa

by Julian Ku

Here is the final post in my conversation with Prof. David Weissbrodt on Kiobel and corporate liability under the Alien Tort Statute.

It is worth emphasizing why I think the “choice of law” question is so crucial to resolving this case (and why Justice Breyer agrees with me on this point). In its 2004 decision, Sosa v. Alvarez-Machain, the Supreme Court decided that the Alien Tort Statute authorized the recognition of causes of action that were “specific, universal, and obligatory.” In that case, the Court actually rejected the norm of “arbitrary detention” as insufficiently universal as applied to the facts of that case.

The idea behind the Sosa standard, the Court emphasized, is that federal courts should only be allowing lawsuits over norms that are uncontroversial and which other countries would not dispute. Reaching out and creating “disputable” causes of action overstepped the narrow mandate the federal courts have under the Alien Tort Statute, and raised the potential of federal courts causing conflicts with the President and Congress on the one hand, or with foreign countries on the other.

This baseline standard is important to keep in mind when evaluating Professor Weissbrodt’s arguments in favor of a general international law duty for business corporations. Althought Professor Weissbrodt marshals some interesting precedents, I seriously doubt they would satisfy Sosa’s “specific, universal, and obligatory” standard.

Continue reading here and see Prof. Weissbrodt’s post here.

One More Almost Forgotten Argument Against Corporate Liability

by Julian Ku

Anton Metlitsky, an attorney that is defending Rio Tinto from a similar ATS lawsuit as Kiobel’s, drops me this useful reminder about another hurdle facing the Kiobel plaintiffs.

In a recent post, you say that “the only way plaintiffs will prevail is if they convince a majority of the Court (meaning Justice Kennedy), that the question of corporate liability is really a question of remedies, and that is a matter left to the domestic common law of the U.S.”  I think there is a strong argument that plaintiffs should lose even if the question of corporate liability is controlled by domestic law (i.e., federal common law).  As we argued at length in an amicus brief we filed in support of the respondents, corporate liability is not automatic under federal common law.  For example, the Supreme Court has held that there is no corporate liability for implied federal common law actions under Bivens, which are similar in kind to the implied federal common law actions that the ATS empowers federal courts to imply under Sosa.  And there are several good reasons, we argue, for the Court to hold that federal common law should not allow private actions against corporations.  Most important, it appears likely from the Mohamad argument that the Court will hold (as most lower courts have held) that the TVPA does not allow for corporate liability.  That is highly significant to the corporate ATS liability question, because enactment of the TVPA was the one time Congress actually considered what an express cause of action under the ATS should look like, and it chose to preclude suits against corporations.  Supreme Court precedent concerning other areas of federal common law, such as maritime law, make clear that the Court should heed the policy limits Congress sets forth in statutes when crafting analogous common law causes of action.  Thus, the TVPA’s limitation of liability to natural persons should lead the Court to conclude that federal common law claims under the ATS alleging violation of similar human rights norms should be similarly limited.

To be sure, the TVPA is limited to torture and extrajudicial killing, while courts have recognized causes of action under the ATS for other human rights norms.  But when the TVPA was enacted, the two major ATS human rights cases were Filartiga and Tel-Oren, which dealt only with the norms covered by the TVPA.  Indeed, the TVPA was expressly intended to provide an express cause of action to support the type of action recognized by the Second Circuit in Filartiga and by Judge Edwards in Tel-Oren, in case the Second Circuit and Judge Edwards turned out to be wrong, and Judge Bork’s view that the ATS was only a jurisdictional statute requiring further action by Congress turned out to be right.  There is no reason to think Congress would have treated other related human rights norms any differently.  The Kiobel petitioners also argued in their reply brief that the TVPA does not have much to say about the scope of the ATS action because the TVPA was only meant to “supplement” the ATS.  But that argument only works if (as Filartiga and Judge Edwards appear to have believed) the ATS itself created a cause of action.  Sosa rejected that position, holding that the ATS was jurisdictional only, but that it empowered courts to imply a narrow set of actions under federal common law.  And when it comes to federal common law, the courts should follow Congress’s lead, not the other way around.  Whether corporate liability should be allowed for some human rights violations and not for others is a question that Congress, not the courts, should decide, particularly in an area where the risk of interference with the political branches’ foreign policy prerogatives is so high, and where Sosa itself declares that courts must exercise “great caution” in fashioning new actions under the ATS.

Their amicus brief is here. I think this is also a good argument, and might very well be another way for the Court to avoid the unattractive “corporations are not liable for torture” argument, although it ultimately will look and sound the same. Still, worth thinking about.  I like especially the point that there is no corporate liability in a Bivens action (a tort claim for violation of one’s constitutional rights).

The “Crucial” Choice of Law Question in Kiobel

by Julian Ku

Here is the second round of my exchange with Professor David Weissbrodt over at Pointoflaw. I begin by citing the following exchange during Kiobel’s oral argument yesterday.  

SULLIVAN: …The crucial question that is at the threshold is which law determines whether corporations are liable.
 
JUSTICE BREYER: I think you are right on that point….

- From the Kiobel v. Royal Dutch Shell, Oral Argument Transcript, February 28, 2012 at 32.

This exchange between Kathleen Sullivan, the attorney for respondents Royal Dutch Shell in Kiobel, and Justice Breyer highlights the importance of the “choice of law” question to this case. The “choice of law” question is whether international law or domestic law governs the question of corporate liability.

The importance of the “choice of law” question might seem surprising. After all one might expect that a leading international human rights lawyer like Kiobel’s attorney, Paul Hoffman, and a leading scholar of international human rights law like Professor David Weissbrodt, would invoke international law to justify holding corporations accountable for humanitarian atrocities. Yet both (along with the Obama Justice Department) are insisting the question of corporate liability is a matter for domestic and not international law.

The reasons for this insistence, as I argued in my prior post, is that the international law precedents for holding corporations liable for violations of customary international law are embarrassingly thin. They are so thin that the Petitioners barely mentioned them, and that the Obama Justice Department didn’t even invoke them. They are so thin that Professor Weissbrodt, who spearheaded the important U.N. effort to develop norms governing the behavior of transnational corporations, does not make this argument either.

Justice Breyer’s comment therefore suggests that if international law governs the question of corporate liability, the plaintiffs will lose. And that the only way plaintiffs will prevail is if they convince a majority of the Court (meaning Justice Kennedy), that the question of corporate liability is really a question of remedies, and that is a matter left to the domestic common law of the U.S.

On this “crucial” point, I still find the Petitioner’s argument lacking.

Read the rest of my post here and Prof. Weissbrodt’s post here.

Parsing the Oral Arguments in Kiobel and Mohamad

by Chimene Keitner

[Chimène Keitner is an Associate Professor of Law at the University of California, Hastings College of the Law.]

The oral arguments in Kiobel and Mohamed will doubtless generate a new round of commentary on these cases. A “quick response” panel is planned for Thursday, followed by a Georgetown Law symposium on March 27 and an ASIL annual meeting panel on March 31.

Since I have written on the choice of law question under the ATS, I predictably agree with Kathleen Sullivan’s statement that “The crucial question that is at the threshold is which law determines whether corporations are liable.” (Tr. at 32.) However, I disagree with her argument that “corporate liability” is a “substantive norm,” and that the question of whether a natural person’s conduct can be attributed to a corporation for the purpose of imposing civil liability is necessarily governed by the same source of law as the standard for aiding and abetting, or the state action requirement addressed in footnote 20 of the Sosa opinion. Sullivan argued that all three of these questions (corporate liability, aiding and abetting, and state action) are “substantive questions answered by international law.” (Tr. at 37.) Elsewhere in the argument, she suggested that the proper source of law for theories of attribution, at least in a common law action, would be “the place of misconduct or the place where the corporation is headquartered.” (Tr. at 39.) Punitive damages, by contrast, she would categorize as a remedial matter properly governed by U.S. domestic law. (Tr. at 39.) Paul Hoffman argued on behalf of Petitioners that domestic law applies to the corporate liability question because “international law, from the time of the Founders to today, uses domestic tribunals, domestic courts and domestic legislation, as the primary engines to enforce international law” (Tr. at 6), and that in any event the substantive international legal norms at issue in this case do apply to corporations, as argued more fully by Opinio Juris contributor Oona Hathaway in an amicus brief.

In general, the Justices appeared to endorse a dichotomy between “substantive” rules and rules relating to “enforcement”—a dichotomy advocated by Ed Kneedler in his argument on behalf of the U.S. Government. Justice Kagan articulated this as the dichotomy between the law governing “who has an obligation” vs. “who can be sued.” (Tr. at 37-38.) As I suggested in my 2008 article, following Bill Casto, and in a shorter 2011 symposium piece,  it seems to me that the most coherent approach to the choice of law question distinguishes between “conduct-regulating” and “non-conduct-regulating” rules. Under the ATS, conduct-regulating norms are supplied by international law. Since entities inevitably act through natural persons, these norms govern the conduct of natural persons, but that does not mean that other organizations or entities cannot also bear the legal consequences of natural persons’ conduct in a variety of circumstances. (The reverse is also true—for example, foreign officials generally do not bear the legal consequences of commercial transactions that they enter into on behalf of the foreign state.) Paul Hoffman indicated some sympathy for this view in his final response to Justice Scalia’s question about what source of law he would apply to the standard for aiding and abetting liability (an issue not presented for review in this case), when he responded that “I think that—that aiding and abetting could be viewed as a conduct regulating norm, that it actually applies to the things that can be done to violate the norm. And therefore, international law would apply to that.” (Tr. at 56.) However, the same answer does not necessarily hold true for the corporate liability question presented in Kiobel, because rules of attribution are not conduct-regulating.

As a general matter, I abstain from making predictions in cases. However, in a slight break from my own tradition, I will hazard a guess that there will be at least one opinion supporting corporate liability (on the principle that corporations are routinely held liable for the torts of their agents), one opinion opposing corporate liability and also challenging the ATS’s grant of jurisdiction over extraterritorial conduct and over suits between aliens, and one opinion (perhaps a concurrence) opining on how ATS suits fit (or not) into the evolving global landscape of domestic adjudication of international law violations (whether these are denominated violations of international law, common law, or domestic statutes that codify international law norms).

Kiobel and Mohamad Oral Argument Transcripts

by Kenneth Anderson

… from this morning’s hearing:  Kiobel and Mohamad.  I would be curious as to readers’ prognostications of how the Justices will rule based on the oral arguments today. (Thanks for comments, interested in more.  For example, where did this extraterritoriality question suddenly materialize from and does it portend something different from what was originally thought?  You can also see John Bellinger’s take on the argument at Lawfare.)

Update: Reading the transcripts more carefully, as well as Chimene Keitner’s thoughtful post above, I recall that in some blog post somewhere a few year ago – my old blog, OJ, Volokh, I don’t even remember – I said that the problem of corporate liability and that ATS was that in order to get the international law predicate going, “you needed not just a what but a who.”  I assumed that this would be an issue in the oral argument; like lots of other folks, I didn’t anticipate that extraterritoriality would figure in any significant way.

Comment on Kiobel and Mohamad

by Juan E. Mendez

[Juan E. Méndez is the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, and a Professor at American University Washington College of Law.]

Torture is illegal and immoral, and like slavery, we should have abolished it by now. And yet its use continues to haunt our societies. In fact, the issue of torture — and whether corporations are immune from liability for committing torture — will come before the U.S. Supreme Court on Feb. 28.

In Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority and Palestine Liberation Organization, the Supreme Court will decide whether or not torture victims can sue corporations and other non-governmental entities, for their injuries. The two federal statutes at issue—the Torture Victim Protection Act (TVPA) and the Alien Tort Statute (ATS)—have been used for more than a decade to hold corporations liable for torture, genocide, crimes against humanity, and war crimes, even when those violations occurred outside of the United States.

While Kiobel and Mohamad do not represent the first time that torture victims have sued corporations or other non-state actors for committing the most atrocious of abuses, this is the first time that the push back from corporations has reached the Supreme Court. On the one hand, corporations declare, in cases like Citizens United v. FEC, that they have rights. On the other hand, corporations refuse to take responsibility for committing or aiding in torture or genocide. If “corporations are persons too,” we ought to be able to hold them accountable for the most serious crimes.

Kiobel is a modern-day David and Goliath story. The Kiobel plaintiffs, Nigerian political activists who opposed Shell’s oil exploration in the Niger Delta in the mid-1990s, allege that they were subjected to torture, extrajudicial killings and crimes against humanity by the corporate-funded Nigerian military forces. On the other side of the table is one of the largest oil companies in the world, Royal Dutch Petroleum, which reaped a reported $30 billion in profits in 2011. The Supreme Court granted certiorari, after a New York federal court of appeals held that corporations cannot be sued for international law violations. Similarly, the Mohamad court held that corporations and non-physical entities are immune from suit under the TVPA, where a man was allegedly tortured to death by agents of the Palestinian Authority in the West Bank.

The appellate decisions under review, fly in the face of the United States’ commitment to a zero-tolerance approach to torture. As a party to the Convention Against Torture and other treaties, the United States prohibits torture by all U.S. actors and is obliged to afford remedies against all victims. Torture cannot be excused when used against foreigners in secret locations outside the United States. And it cannot be excused when committed or abetted by a corporation anywhere in the world. If torture occurs, the United States is obliged to investigate, prosecute and punish every instance and to offer remedies, reparation and rehabilitation to victims.

What is at stake in Kiobel is the effective eradication of torture. To exempt corporations from liability is akin to providing amnesty for acts that are unquestionably illegal. It tells torturers and their enablers: if you want legal immunity, privatize your operations. It sends the message to corporations around the world: torture your employees and members of the communities in which you operate, because you won’t be held accountable and your bottom line could actually grow.

As the United Nations Special Rapporteur on Torture, I apply a victim-centered approach to my mandate, derived from international standards but also from personal experience. As a young lawyer in Argentina, I represented political prisoners during the “Dirty War” inflicted on my country by the military dictatorship. Because of my work, I was arrested, tortured, and held in administrative detention for more than a year.

I have seen first-hand how torture and other forms of inhuman treatment can thrive in an environment where accountability is lacking. I know that the physical and psychological injury that victims suffer lasts long after the torture ends. And I believe that victims’ reintegration with their families and into their daily lives is not complete until their perpetrators are brought to justice.

As a witness and as a survivor, I feel an acute sense of responsibility to ensure that the perpetrators of torture are punished and that their punishment is held up as a warning to others. I remain convinced that the ATS, enacted in 1789, and its companion statute, the 1992 TVPA, hold great potential for holding perpetrators accountable. I hope that the Supreme Court will uphold the promise of these laws, and fulfill the United States’ commitment to protect human rights, and not allow corporations to get away—literally—with torture.

Kiobel and Unattractive Legal Arguments Against Corporate Liability Under the Alien Tort Statute

by Julian Ku

I am participating this week in a discussion on Kiobel v. Royal Dutch Petroleum, the case on corporate liability under the Alien Tort Statute that will be argued tomorrow at the Supreme Court, at the Manhattan Institute’s Point of Law Blog.  My interlocutor will be Professor David Weissbrodt of the University of Minnesota.  Here is a snippet of my opening salvo:

I will use two recent op-eds on the upcoming case to launch our discussion. Each op-ed reflects how the disputants in Kiobel would like to frame their argument to the Supreme Court and to the public.

In the NYT, Peter Weiss, formerly of the Center for Constitutional Rights, focuses on the importance of the ATS in holding human rights offenders accountable and the general unfairness of excluding corporations from ATS lawsuits.

In the Washington Post, former Bush Administration State Department Legal Advisor John Bellinger, argues that ATS lawsuits are being used to harass corporations into settlements, to interfere with other nation’s domestic affairs, and to embroil the United States in disputes with important foreign allies like the United Kingdom, the Netherlands, and Germany.

I think Bellinger has a very strong argument (I have joined an amicus brief in this case making very similar arguments) and I haven’t seen the petitioners in this case or their amici make a very persuasive response to it. If the Supreme Court rules against the Kiobel plaintiffs, I am betting some version of this argument will be in the majority opinion.

But it is also noteworthy that Bellinger does not respond to Weiss’ claim about the unfairness of excluding corporations. He doesn’t do so because the “corporations are not liable under the ATS,” is the kind of rigidly formalistic argument that rarely succeeds at the Supreme Court and has almost no appeal to the general public. The NYT headline to Weiss’ op-ed, “Should Corporations Have More Leeway to Kill Than People Do?,” neatly captures the difficulty that the Shell defendants face in making this argument.

But just because the argument is unattractive, doesn’t mean it is wrong.

Please check out Point of Law for the rest of my post, and later on this week for Prof. Weissbrodt’s thoughts on the Kiobel question.