03 Mar Human Rights Litigation in State Courts and Under State Law
Kudos to Chris Whytock for a wonderful conference yesterday at UC Irvine addressing the topic of human rights litigation in state courts and under state law.
The timing of the conference could not have been better, coming on the heels of the Kiobel oral argument on Tuesday, in which the principal defense of Kathleen Sullivan was that corporations should be held liable under state and foreign law, not international law. “We do not urge a rule of corporate impunity here,” she argued on Tuesday. “There can … be suits under State law or the domestic laws of [other] nations, but there may not be ATS Federal common law causes of action against corporations.”
The general (but not unanimous) consensus at the conference seemed to be that Kiobel went badly for the petitioners, and that we should anticipate a 5-4 decision favoring the corporations. If so, then what would that post-Kiobel world look like? I asked that question of Paul Hoffman, who argued for Esther Kiobel before the Supreme Court on Tuesday, and he said in such a world human rights lawyers would regroup and continue to bring cases under the ATS against corporate officers, and bring diversity or pendant state law claims against the corporations. Beth Stephens reminded the group that in the early days of the ATS plaintiffs almost always included pendant state laws claims in their complaints, and with recent setbacks they have returned to that practice, witness Doe v. Exxon.
There were many wonderful presentations, but my main take-away from the conference was that public international lawyers better become conversant in private international law. If common law state torts for wrongful death, battery, and false imprisonment are the basis for causes of action for international human rights litigation, then state choice of law rules are going to become the rage for human rights practitioners. We should all start reading the conflict of laws treatises of Patrick Borchers and Symeon Symeonides again, and start considering the constitutional and international law limits of the extraterritorial application of common law torts. Fortunately, some incredibly productive young guns like Chris Whytock, Trey Childress, and Anthony Colangelo are filling the gap.
My own presentation suggested that international human rights lawyers should pay more attention to the FSIA § 1605A terrorism cases filed against Iran, Libya, and Sudan. In these under-analyzed cases plaintiffs have been winning billions of dollars in judgments using state tort laws as the cause of action for terrorist attacks in Lebanon, Kenya, Tanzania, and Israel. Federal courts are interpreting District of Columbia choice of law rules to allow for the application of victim domiciliary tort laws to determine liability and damages. It may sound strange that the wrongful death tort laws of U.S. states are the basis for finding billions in liability for foreign terrorism, but that is what federal courts are finding in dozens of cases rendered in the past fifteen years. By virtue of FSIA § 1606, these findings are directly relevant to questions of private individual and corporate liability for international human rights violations.
Symposium articles will be published in the UC Irvine Law Review, which will surely be worth careful reflection.
Response…
Choice of law (regarding choice of domestic laws, e.g., of the forum or foreign) was what Scalia has been trying to impose in the federal courts since his dissent in Hartford Fire (and he erronelously thought that conflicts or choice of law or a comit-factors approach to denying jurisdiction was part of international law concerning jurisdiction). I think that the better approach would be to rest jurisdiction on universal jurisdiction. We need to find more cases in the state courts that used euniversal jurisdiction expressly or by implication — e.g., some of the old piracy cases in state courts, etc.
If the S.Ct. makes the wrong decision, I guess there will be no federal preemption.