01 Oct Kiobel Argument Goes Badly for Shell (FWIW)
The transcript in the Kiobel case has been posted here.
Shell counsel/former Stanford dean Kathleen Sullivan seems to have been on her heels for much of her argument time. Big sticking point on her claim that the ATS was not intended to cover piracy or a “reverse Marbois.” (No, that is not a wrestling move; it’s the counterfactual in which the famous attack of a French diplomat by an American occurs in France, not Philadelphia). See pp. 25 and following.
Paul Hoffman, on the other hand, stood his ground pretty well, allowing for the possible interposition of procedural bars to the making of Alien Tort claims (as pushed by Sotomayor). He got in an effective IG Farben analogy and even a little human rights speechifying (see p. 55). Breyer gets the award for zinger of the day: “if Hitler isn’t a pirate, who is?” (Anyone want to do the legal math on that one?)
So predictions of the ATS (extraterritorial) demise may be premature. On the other hand, recent experience demonstrates that predictions based on oral arguments are not especially reliable.
We’ll be hosting guest posts here on the Kiobel argument through the middle of this week.
Well, having read the transcript, and having very little to lose from throwing my own prediction out there, I’ll go ahead and say that Shell prevails, 6-3.
If it looks like they took it easy on Hoffman, it’s only because his argument was already so far gone. Most of the question on Sullivan seemed primary gauged at figuring exactly how thoroughly to gut the ATS.
I am hoping that the Court writes a narrow opinion that remands on the “exhaustion” point. I wouldn’t have thought that this was possible prior to the oral argument (which, of course, could mean very little), but Sullivan really did not seem to handle the Court’s questions concerning piracy very well. In particular, I don’t understand why she committed to the position that the ATS was not meant to apply to conduct that occurred on the high seas.
I agree with M. Gross (although not with the vote prediction). If you have multiple justices asking for the statute to be read so that cases with a direct connection to the United States should be in American courts (i.e., not really foreign-cubed cases as this one is), that would still mean that an Anglo-Dutch company like Shell would prevail.
Even during Mr. Hoffman’s rebuttal argument, the Court mainly just let him speak and didn’t ask many questions. To me, that’s usually indicative of judges whose minds are already made up one way or the other.
[…] conduct abroad should be permitted, not unless Congress decides to go back and say so. But she got serious pushback, while the justices seemed “surprisingly easy” on plaintiffs lawyer Paul Hoffman, said Martin […]