Results matching “"alien tort"”

Supreme Court Preview - October Term 2012 - PointOfLaw Forum

The Supreme Court kicked off the October Term on Monday - the first Monday of October. Here's a quick roundup of the big issues up before the Court.

Affirmative action: The court will revisit its 2003 ruling (Grutter v. Bollinger) which upheld certain affirmative-action programs at universities. In the new case, Fisher v. University of Texas, the Court will consider a white student's challenge to the admissions policy at UT Austin that allows race to trump other merit-based factors. As John Yoo recently argued, the Court should overturn Grutter as a "blemish" on our constitutional law.

Gay Marriage: It's considered likely that the Court will address gay marriage, although the Justices have not made an announcement yet. Actually, there are two distinct issues: (1) can Congress define "marriage" for federal law purposes? and (2) can states define marriage as the union of one man and one woman?

The first issue relates to the Defense of Marriage Act (DOMA). There is at least a decent Tenth Amendment argument that DOMA is unconstitutional. If the federal government wants to make certain benefits contingent on being married, so be it, but the feds have to defer to the states to supply the definition of marriage.

The second issue, which relates to California's Proposition 8, presents a much greater threat to our constitutional order. The liberal argument is that the Constitution requires state recognition of same-sex marriage and, therefore, divests states of their historic power over the definition of marriage. According to the liberal spin, as the Washington Post's Robert Barnes reports in typically unbiased fashion, the question is "whether society's growing acceptance of same-sex unions warrants constitutional protection." I guess society's "growing acceptance" is somehow reflected by the 37 states that have passed laws defining marriage as limited to a union between one man and one woman. As I have said before, the liberal argument here is pure judicial activism.

ObamaCare, Part II? There is at least a possibility that the Affordable Care Act will come back to the Court this term. The Court is considering a petition by Liberty University to reconsider the university's challenge to ACA's employer mandate on religious freedom grounds, but also as exceeding Congress's power. Although the Court often summarily rejects such petitions, it has kept this one under advisement all summer, and now has asked the Obama administration to respond - raising the likelihood that the Court will agree to revisit this law.

Takings. The case is Arkansas Game and Fish Comm. v. United States. The issue is whether government regulations that impose recurring flood invasions constitute a "taking" within the meaning of the Takings Clause, even if the flooding isn't permanent.

Voting rights. Overlapping with the recent Voter ID controversies are a series of cases challenging Section 5 of the Civil Rights Act, which requires states and localities with a history of discrimination to get federal approval of any changes in their voting laws. In a 2009 ruling, the Supreme Court expressed concern about "serious constitutional questions raised by Section 5's intrusion on state sovereignty." Clearly this is the case for state and local elections. But even for federal elections, the Constitution gives states the power to define "the times, places, and manner" of choosing congressmen. Granted, Congress has the power to amend such regulations, but that's very different from forcing states to ask Congress's permission before changing their voting laws.

Alien Torts. On Monday, the Court heard argument on the scope of the Alien Tort Statute (ATS), a venerable 1798 law that allows aliens to bring lawsuits in federal court for violations "of the law of nations or a treaty of the United States." As far as we know, it was enacted to cover very minor gaps in the law, like the assault of a diplomat in the U.S., or piracy committed by Americans in international waters. The law was virtually unused until the 1980s, when it was revived as a nifty way to use American courts to pursue alleged human rights abusers.

In the new frontier, the international rights bar is arguing that the ATS gives courts jurisdiction over suits that have no connection to the US; that is, cases in which foreign plaintiffs sue foreign defendants over conduct that occurred outside of the U.S. The case is Kiobel v. Royal Dutch Petroleum.

In Monday's argument, the Justices showed skepticism of the expansion of the ATS and their questions sought some principle to limit ATS. Justice Sotomayor seemed inclined to endorse an interpretation put forth by the European Union in an amicus brief, which argues that US courts should allow ATS lawsuits with no connection to the US, provided the parties have exhausted all other remedies. As a matter of policy, that might or might not be sensible, but it is disturbing that even one Supreme Court Justice believes that a 214-year-old American law should be interpreted according to a policy formula dreamed up in Brussels.

Alien Tort Statute in the Supreme Court - PointOfLaw Forum

In Kiobel v. Royal Dutch Petroleum, Nigerian plaintiffs alleged that a Dutch corporation assisted the Nigerian government in harming Nigerian citizens in violation of international law. Why is this in American courts? Good question, and one the Supreme Court asked after oral argument of this Alien Torts Claim Act case last term.

Professor Bainbridge worries that Justice Roberts will suffer from the Greenhouse effect and reverse the Second Circuit, but I see no reason to think Roberts will do so. As I noted last year, Roberts's decision in NFIB v. Sebelius was both disappointing and worthy of criticism, but it was entirely consistent with his pre-existing jurisprudence. Moreover, even the Obama administration is forced to admit that the Alien Tort Claims Act has metastasized beyond sound public policy. How can the US argue against abusive extraterritorial jurisdiction over United States citizens over United States claims by foreign nations if it permits judicial supremacy in cases like this? I haven't seen any defense of the expansive application of the Alien Tort Claims Act that reflects the risk to American sovereignty. I don't see this as being a 5-4 case.

More: POL featured discussion; a good Reuters profile of the amicus lawyers that persuaded the Court to take this tack; Anderson @ Volokh; Ramsey; AEI event; SCOTUSblog symposium; Cato amicus; Chamber amicus; SCOTUSblog link roundup and docket; argument transcript.

Around the web, April 11 - PointOfLaw Forum

  • Epstein on DOJ lawsuit against Apple. [Epstein @ Ricochet]
  • Replaying the Duke Lacrosse case at the New York Times with Patrick Witt's reputation; and why isn't there more of a scandal with Yale's abuse of an already abusive process? [KC Johnson @ MTC]
  • The federal prosecutorial overuse of §1001 charges, turning minor civil regulatory violations into federal felonies. [WSJ]
  • PLF speaks out against the ridiculous Toyota sudden acceleration class action litigation in the Ninth Circuit. [PLF]
  • Lawsuit against Iowa government alleges subconscious discrimination based on disparate impact, using theory rejected in Wal-Mart v. Dukes. [Overlawyered; Sailer]

  • Ohio Supreme Court urged to review abusive certification of class action in Cullen v. State Farm, where, speaking of Wal-Mart v. Dukes, lower courts disregarded individualized defenses. [WLF; ATRA; WLF brief]
  • Why the Supreme Court should curb the Alien Tort Statute. [Bellinger @ WaPo; Overlawyered; related @ Volokh]
  • New Hampshire "early offer" statute proposed. [TortsProf; SeaCoast Online]
  • Nearly half of the Warren Court justices were infrequent questioners (and Ruth Bader Ginsburg has fallen asleep during oral argument), but that Clarence Thomas is uniquely quiet among the historically unusually hot bench of the current Supreme Court is somehow evidence that he's a bad justice. [Drumm via Alkon]
  • Remember Obama Girl? She's shilling for a Kentucky Social Security disability lawyer now. [YouTube (h/t R.U.)]

New Podcasts: Making sense of the court order in Kiobel - PointOfLaw Forum

After oral arguments before the Supreme Court of the United States on February, 28 and our featured discussion analyzing those arguments, it was reported that the Court, in the Kiobel v. Royal Dutch Petroleum case, issued an order directing the lawyers to reargue the case in the next term with an expanded argument on the scope of the Alien Tort Statute which gives aliens a right to sue in U.S. courts.

The justices seek to examine a question broader than whether corporations can be held liable for allegedly facilitating human-rights abuses in foreign nations in violation of international law norms. Instead the Court wants to tackle the extraterritoriality issue head on in order to decide whether and under what circumstances the 223-year-old Alien Tort Statute allows U.S. courts to "recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." In addition, it seems that the Court may also address whether a "party being sued can be challenged not for directly engaging in human rights abuses, but for 'aiding and abetting' someone else who did so."

To gain a better understanding of the Court's action, we invited Penny Venetis (amicus brief), clinical professor of law and co-director of the Constitutional Litigation Clinic at Rutgers School of Law in Newark, and Andrew Grossman (amicus brief), visiting legal fellow in The Heritage Foundation's Center for Legal and Judicial Studies and litigator at Baker & Hostetler, to discuss the recent order in the Kiobel case.

Grossman, in the podcast, comprehensively reviewed what led to the Court's order:

I think the theme, the mood of the Court at oral argument, was probably best summed up by a statement that Justice Kennedy made before the first advocate [arguing] before the Court even got out his second sentence which was that, expressing great wariness, "the ATS authorizes federal courts to exercise civil jurisdiction over alleged human rights abuses over which the nation has no connection." I think that Justice Alito put it even more clearly when he asked, "What business does a case like this have in the courts of the United States?"


...I think the court realized in considering this case, especially due to something that happened immediately after oral argument, that deciding the case on corporate liability wasn't going to get them where they wanted to go which was eliminating categorically this type of litigation.

In a separate podcast, Professor Venetis had this to say about the Court's order when asked about Justice Alito's questioning:

...I think that Justice Alito was trying to wrap his head around the notion of extraterritoriality which we've been talking about and that's why the court wants to hear additional arguments, but I don't necessarily think it is a bad thing. It certainly is unusual for the court, but I don't necessarily think it is a bad thing. I think there are a number of Alien Tort Statute cases [making] their way through the system, and they're all making their way one-by-one up to the U.S. Supreme Court. And to me, it seems that the Court really wants to take care of these unanswered questions once in for all. That it is going to consider these open questions that it never spoke about in Sosa or in any other case. It [the Court] really wants to address it all at once rather than by piecemeal every few years. I think that that's certainly one way to interpret the Court's actions. The other is that it truly is concerned about this issue of extraterritoriality.

Kiobel debate complete - PointOfLaw Forum

On Tuesday February 28, the Supreme Court heard oral arguments in Kiobel v. Royal Dutch Petroleum, a case testing the extent to which U.S. law enables litigation in American courts against multinational corporations for allegedly facilitating human-rights abuses in foreign nations in violation of international law norms.

In Kiobel, Nigerian nationals are attempting to invoke the Alien Tort Statute to sue oil companies that the plaintiffs allege worked with the Nigerian military to suppress local opposition to oil exploration. A divided panel of the Second Circuit rejected the Kiobel claim by reasoning that corporate liability was not customary international law, such that the claim lay outside the Alien Tort Statute's jurisdiction.

To discuss these issues, we were lucky to have two distinguished international law professors who each signed amicus briefs in the case, on either side. Julian Ku of Hofstra Law School signed a brief for professors of international law, foreign relations law and federal jurisdiction (PDF) that argued both that the original meaning of the Alien Tort Statute was far narrower than its current application and that the Kiobel suit was unwarranted based on Supreme Court precedent. David Weissbrodt, the Regents Professor and Fredrikson & Byron Professor of Law at the University of Minnesota Law School, signed a brief for international law scholars (PDF) that argued, conversely, that the suit was a legitimate application of international law through the Alien Tort Statute, and that the Second Circuit had misconstrued the international law in this case.


David Weissbrodt (1)

The Supreme Court set forth in Sosa v. Alvarez-Machain (2004) the basic standard for recognizing whether an alien has under the Alien Tort State asserted a "civil action . . . for a tort only, committed in violation of the law of nations or a treaty of the United States." Courts have looked to international law to define actions violating international law, and to federal common law for other matters such as the remedial structure, including the parameters of corporate liability. See Sosa, 542 U.S. at 724, 731. As I previously noted, Judge Posner in Flomo v. Firestone, stated the proper analysis quite concisely: "International law imposes substantive obligations and the individual nations decide how to enforce them" The correct reading of the history of the Alien Tort Statute shows that corporations were a proper subject of tort sanctions under the ATS. See a Brief of Former United States Government Counterterrorism and Human Rights Officials as Amici Curiae in Support of Petitioners; Brief of Amici Curiae Professors of Legal History in Support of Petitioners.

As to international law, the Supreme Court decided that the Alien Tort Statute authorized the recognition of causes of action that were "specific, universal, and obligatory." The Court did not reject arbitrary detention as a norm insufficiently universal and thus not cognizable under the ATS. Instead, the Court held that a single detention of less than a day followed by due process was not sufficient to establish a violation of the law of nations under the ATS. If Alvarez-Machain had been the subject of prolonged arbitrary detention, torture, or other grave abuses of human rights, there would likely have been a different result.

Nowhere in Sosa did the Court say that norms must be "uncontroversial and which other countries would not dispute." Instead, the Sosa Court cited favorably the approach which the seminal case of Filartiga v. Peňa-Irala used to find that torture qualifies as a violation of the law of nations. Adopting this analysis, in a case involving genocide by a corporation, should result in a holding that genocide qualifies as a violation of the law of nations under the ATS. The prohibition of genocide constitutes an erga omnes and a jus cogens norm, and international law clearly recognizes that such norms are applicable to all actors, including governments, heads of state, individuals, and corporations. Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), IC.J. Rep. 3, 32 (paras. 33-35).

Furthermore, the Convention against Genocide provides erga omnes criminal responsibility for "rulers, public officials or private individuals," which would, under international law, include corporations and corporate officers. The Brief of Yale Law School Center for Global Legal Challenges at 9, cites to the International Court of Justice, which has discussed "persons or entities" that committed the acts of genocide at Srebrenica. 2007 I.C.J. 43, para. 393, and the International Criminal Tribunal for Rwanda found that a corporate entity, a radio station, violated the prohibition against genocide. See Yale Law School Brief at 10. The Yale brief also extensively discusses the sources of customary international law which extend to corporations the prohibitions against crimes against humanity, torture, extrajudicial killings, war crimes, slavery, and piracy.

The international criminal tribunal at Nuremberg and the Rome Statute are important authority under international law but they are not the only way of establishing responsibility in tort under the ATS. As concisely summarized by Judge Judith Rogers in Doe v. Exxon, the decisions of judicial tribunals are a secondary source of customary international law and the practice of nations is a primary source. Treaties and other instruments qualify as the practice of nations including corporate responsibility, as I mentioned in my second post on the Kiobel case. Actions that the D.C. Circuit considered significant were the actions taken under international law to dismantle I.G. Farben and other corporations aiding and abetting the Nazi Holocaust. In her opinion in Doe v. Exxon, Judge Rogers of the U.S. Court of Appeals for the District of Columbia wrote: "[T]he Allies determined that I.G. Farben had committed violations of the law of nations and therefore destroyed it. Judge Richard Posner also adapted this analysis, stating "At the end of the Second World War the allied powers dissolved German corporations that had assisted the Nazi war effort, along with Nazi government and party organizations--and did so on the authority of customary international law." See also Amicus Brief of Nuremberg Scholars in Support of Petitioners.

And, as noted by the United States Amicus Brief and one prominent scholar of the international tribunals, the central point is that "nothing in the history of the Nuremberg proceedings suggests that juridical persons could never be held accountable (through criminal prosecution or otherwise) for violating international law" [citing Jonathan A. Bush, The Prehistory of Corporations and Conspiracy in Criminal Law: What Nuremberg Really Said, 109 COLUM. L. REV. 1094, 1239 (2009)

As to the exclusion of corporate criminal liability in the Rome Statute (for the International Criminal Court), the brief by Ambassador David Scheffer makes clear, the negotiators' decisions "had nothing to do with customary international law and everything to do with a complex and diverse application of criminal (as opposed to civil) liability for corporate conduct in domestic legal systems around the globe." There was no civil liability imposed because it was considered outside the jurisdiction of a criminal court, and it was never "thoroughly discussed." Brief of Ambassador David J. Scheffer at 18, fn 6.

Briefs of interested nations, such as Netherlands and the United Kingdom where the Royal Dutch Shell Company is located, do not qualify as persuasive authority in establishing the practice of nations.

Ultimately, the question posed by the Kiobel case is: Is there any basis under federal common law or international law to exempt corporations from responsibility for their tortious conduct in violation of the law of nations? In examining the text, history, and context of the Alien Tort Statute, as well as the provisions of international law, the answer to that question is, "No."

I want to thank Point of Law for hosting this discussion and to Professor Ku for inviting me to participate.

(1) Thanks to Professor Jennifer Green of the University of Minnesota Law School for her assistance in preparing this post.

The importance of the Sosa standard - PointOfLaw Featured Discussion

Julian Ku

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.

For instance, the Convention Against Genocide itself, which Professor Weissbrodt cites, reflects ambiguities as to whether it applies to corporations. Article IV, for instance, states:

Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

(Emphasis added). As you can see, the language Professor Weissbrodt quotes does not apply generally under the Convention and, in fact, this language illustrates that the Convention does not impose any duties directly on corporations that are "specific, universal, and obligatory." The phrase "private individuals" generally refers to natural persons.

Moreover, the history of the drafting of the Rome Statute of the International Criminal Court and the trials of Nazis after World War II reflect hesitation about imposing duties directly on corporations. The drafters of the Rome Statute debated, and then decided not to adopt a civil remedy and, further, not to bring corporations within its jurisdiction. The victorious WWII powers considered, but ultimately did not bring any corporations to trial (although the owners or officers of the corporations were prosecuted). It is therefore not surprising that countries such as the UK and the Netherlands have filed amicus briefs in this case arguing that there is no general norm imposing duties on corporations under international law.

I do not doubt that corporations could, via a formal act of lawmaking such as an amendment to the Alien Tort Statute or formal treaty, acquire duties for violating certain international law obligations. This would be a deliberate decision by the Congress or the President and Senate to take a side in the development of international law norms. But that decision, which is fraught with complicated policy considerations, should be left to the Congress or the President and Senate. It should not be left wholly within the discretion of federal courts acting pursuant to a deeply ambiguous statutory mandate.

I want to thank Point of Law again for hosting this great discussion, and to Professor Weissbrodt for his participation.

Further discussion of the Kiobel case - PointOfLaw Featured Discussion

David Weissbrodt

The oral argument that occurred Tuesday, February 28th, for the Kiobel v. Royal Dutch Petroleum case focused on the application of the Alien Tort Statute (ATS) to corporations. In my first post of this series, I explained the Supreme Court's discussion of the Alien Tort Statute in Sosa, to identify an international law violation justiciable under the ATS, and I will not repeat that discussion here.

As several justices noted at yesterday's argument, however, courts have looked to international law to define the actions violating international law, and to federal common law for other matters such as the remedial structure, including the parameters of corporate liability. See Sosa, 542 U.S. at 724, 731. In Flomo v. Firestone, one of the cases I mentioned in my previous post, Judge Richard Posner stated, "International law imposes substantive obligations and the individual nations decide how to enforce them." This approach is the proper way to analyze the question, not because of a dearth of authority under international law that courts look to federal common law.

As stated in an Amicus Curiae brief, however, which I signed as one of several International Law Scholars, both under federal common law and international law, corporations are responsible for their violations of the law of nations..

To further elaborate, there is ample authority under international law for the responsibility of corporations for human rights violations, Examples include the Universal Declaration of Human Rights, which is the primary source and definition of international human rights law and provides, inter alia, "a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society...," which includes corporations. Following the Universal Declaration, the United Nations adopted two Covenants that comprise the most authoritative and comprehensive prescription of human rights obligations. The International Covenant on Civil and Political Rights, entered into force Sept. 8, 1992, with regard to the United States), similarly includes corporations in its Article 5: "Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein . . .". (emphasis added)

Another prominent human rights treaty, International Convention on the Elimination of All Forms of Racial Discrimination, entered into force Sept. 8, 1992, with regard to the United States), also applies to racial discrimination "by any persons, group or organization . . . ." The Convention on the Elimination of All Forms of Discrimination against Women, contains an even more explicit reference to corporations in obliging governments "to eliminate discrimination against women by any person, organization or enterprise . . .." The Convention on the Prevention and Punishment of the Crime of Genocide, entered into force Feb. 23. 1989, with regard to the United States) applies to "Persons committing genocide or any of the other acts enumerated in article III . . . whether they are constitutionally responsible rulers, public officials or private individuals" which, under international law, would include corporations and corporate officers.

The Brief of Yale Law School Center for Global Legal Challenges at 9, cites to the International Court of Justice, which has discussed "persons or entities" that committed the acts of genocide at Srebrenica. 2007 I.C.J. 43, para 393, and the International Criminal Tribunal for Rwanda found that a corporate entity, a radio station, violated the prohibition against genocide. See Yale Law School Brief at 10. Other clear examples of norms extending to corporations include the international prohibitions against torture, extrajudicial killing, war crimes, slavery and piracy.

The U.N. Sub-Commission Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, provide in paragraph 18 that "Transnational corporations and other business enterprises shall provide prompt, effective and adequate reparation to those persons, entities and communities that have been adversely affected by failures to comply with these Norms through, inter alia, reparations, restitution, compensation and rehabilitation for any damage done or property taken. In connection with determining damages in regard to criminal sanctions, and in all other respects, these Norms shall be applied by national courts and/or international tribunals, pursuant to national and international law." Most recently in its Guiding Principles on Business and Human Rights: Implementing the United Nations "Protect, Respect and Remedy" Framework, U.N. Doc. A/HRC/17/31, paragraph 7 (Mar. 21, 2011), the U.N. Human Rights Council called for attention to "gross human rights abuses" and indicated that States "should take appropriate steps to address them. This may include exploring civil, administrative or criminal liability for enterprises . . . that commit or contribute to gross human rights abuses."

There are a number of other treaties and instruments on human rights, corruption, environmental pollution, etc. that include corporations. Altogether these treaties and other instruments establish customary international law that corporations and other persons are responsible for their human rights and similar violations within the realm of the Alien Tort Statute.

Thanks to Professor Jennifer Green of the University of Minnesota Law School for her assistance in preparing this post.

The "crucial" choice of law question in Kiobel - PointOfLaw Featured Discussion

Julian Ku


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. I don't find Amereda Hess particularly compelling, since the language Professor Weissbrodt cites in that decision was made in the context of rejecting ATS jurisdiction over a particular class of defendant (a sovereign state).

Moreover, I am surprised to hear so many distinguished international law scholars argue that the class of defendant makes no difference to the applicability of an international law norm. As several justices pointed out today during argument, this is not true with respect to international law claims against sovereign states, which are usually barred due solely to the identity of the defendant (as in Amerada Hess).

It is also not true with respect to natural persons, who may be held liable under customary international law only for the most serious jus cogens violations (as the Second Circuit in Kadic v. Karadzic held). In other words, international law usually takes quite seriously the identity of the defendant when determining whether international law norms are applicable. Depending on the identity of the defendant, the norm might or might not apply. This is not an "exemption," this is simply how international law works.

Why this approach should be different for corporations is something I don't quite understand. Certainly, there is nothing in the text of the Alien Tort Statute, or in the Supreme Court's decision in Sosa, which requires departing from the typical practice of taking into account the identity of the defendant in determining the applicability of an international law norm.

Introduction to Kiobel v. Royal Dutch Petroleum - PointOfLaw Featured Discussion

David Weissbrodt

Regents Professor of Law and Fredrikson & Byron Professor of law at the University of Minnesota.(1)

Thanks for inviting me to participate in an on-line discussion of the Alien Tort Statute (ATS) and the Supreme Court's oral argument in Kiobel v. Royal Dutch Petroleum, scheduled for Tuesday, February 28, 2012.

The principal issue in the Kiobel case is in interpreting a U.S, law, the Alien Tort Statute (ATS), 28 U.S.C. § 1350, which provides a unique basis of federal court jurisdiction:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

The statute says nothing about the category of defendant and my colleagues interpreting the history of the statute have found that when the law was enacted (in 1789), corporations were subject to suit, and "to read a corporate exemption into the ATS would be inconsistent with the statute's plain text and contrary to congressional intent." Amicus Brief of Professors of Legal History.

The argument that corporations are not liable under the ATS is not only "unattractive," but it is a mistaken interpretation of the law. This error in legal interpretation is demonstrated in the parallel statement that a corporation "should be held liable...under the domestic law of the corporate defendant's place of business."

When the Supreme Court last considered an Alien Tort case involving a corporation, it held that the ATS "did not distinguish between the category of defendants." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989).

The Supreme Court authoritatively interpreted the ATS in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)., and held that any ATS claim must "rest on a norm of international character accepted by the civilized world and defined with sufficient "specificity," 542 U.S. at 725. As the United States has observed in its brief for the Kiobel case, the ATS claim pertains to the international-law norm itself and not to whether (or how) that norm should be enforced in a suit under the ATS. The latter question is a matter to be determined by federal courts cautiously exercising their "residual common law discretion" in holding human rights offenders accountable and the general unfairness of excluding corporations from ATS lawsuits.

In nearly every case in which an ATS claim has been presented against a corporation the courts have held that corporations can be held liable. The U.S. Court of Appeals for the Second Circuit was the first and only circuit court to hold that corporations cannot be held responsible under the ATS. Four other circuits (D.C., 7th, 9th, and 11th) have held corporations responsible under the ATS. Judges writing opinions finding corporate liability under the ATS have included Judith Rogers in Doe v. Exxon and Richard Posner in Flomo v. Firestone.

On the policy questions identified in the first post on the concerns of foreign governments, U.S. courts have been receptive to the opinions of foreign governments on a case-by-case basis where that particular case challenges the legitimate act of that government (the act of state doctrine). While a foreign government might prefer that no corporation with which it has a connection might be sued in the United States, if that corporation does business in the U.S. our laws state that the corporation is subject to suit. There is no basis to single out ATS claims for a different rule on jurisdiction. With regard to the argument about suits brought for harassment, not even one example is provided and this silence speaks volumes.

(1) Thanks to Professor Jennifer Green of the University of Minnesota Law School for her assistance in preparing this post.


Professor Julian Ku of Hofstra Law School and Professor David Weissbrodt, the Regents Professor and Fredrikson & Byron Professor of Law at the University of Minnesota Law School, discuss the extent to which companies can be sued by foreigners in U.S. courts for alleged human rights abuses abroad, at issue in the Kiobel v. Royal Dutch Petroleum case currently before the Supreme Court with oral arguments scheduled to be heard tomorrow. This installment of Point of Law's monthly featured discussions was deliberately scheduled to generate quick-time analysis and reaction to the Kiobel case shortly after it is argued in the courtroom.


Professor Ku's opening comment neatly summarized the major arguments on both sides of the central issue in Kiobel. Professor Ku then discussed the "unattractive" argument against corporate liability, yet concluded that this argument, while unattractive and unpopular, is persuasive and probably correct, citing the strong presumption that "international law doesn't impose duties directly on corporate entities after all." The featured discussion promises to be lively and thoughtful; please check back throughout the week as the discussion continues.

Julian Ku

Professor of Law at the Maurice A. Deane School of Law at Hofstra University. Professor Ku focuses his research on the intersection of international and domestic law. His forthcoming book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order (with John Yoo), is being published by Oxford University Press.

Thanks to Point of Law for inviting me to share my thoughts on the Supreme Court's consideration of the Alien Tort Statute (ATS) in Kiobel v. Royal Dutch Petroleum.

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. As I argued at some length in the Virginia Journal of International Law, the question of corporate liability under the ATS is NOT about whether corporations should be held liable for aiding in humanitarian atrocities. Of course they should. But they should be held liable under the domestic law of the country where the alleged atrocities occurred, under the domestic law of the corporate defendant's place of business or registration, or under an international treaty specifying their duties and obligations.

Instead of worrying about corporate accountability generally, the question for the Supreme Court is whether Congress has granted the federal courts the broad lawmaking authority to extend international law norms to corporate entities for actions that have the most tenuous of connections to the United States. As I detail in my VJIL article and in my amicus brief, the precedents for extending international law to corporate entities ranges from few to embarrassingly few. The international precedents are so thin that the pro-ATS Obama Justice Department does not even try to make this argument in their amicus brief otherwise supporting the petitioners.

Instead, the petitioners (and the Obama Administration) have emphasized that the question of corporate liability under the ATS is a question of domestic federal common law rather than of international law. Federal courts should be allowed to impose such liability as part of their general common lawmaking powers.

I think this argument has problems, which I may discuss in subsequent posts, but it is definitely the petitioner's strongest argument. And this strongly suggests that, at least for now, international law doesn't impose duties directly on corporate entities after all. Which means that the most unattractive argument for the defendants is probably correct, even though it won't do them much good.

James R. Copland

On Tuesday of this week, the Supreme Court will hear oral arguments in Kiobel v. Royal Dutch Petroleum, a case that will test the extent to which U.S. law enables litigation in American courts against multinational corporations for allegedly facilitating human-rights abuses in foreign nations in violation of international law norms.

The operative statute, the Alien Tort Statute or Alien Tort Claims Act (codified at 28 U.S.C. § 1350), was a part of the original Judiciary Act of 1789, which reads, "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."

In Kiobel, Nigerian nationals are attempting to invoke the Alien Tort Statute to sue oil companies that the plaintiffs allege worked with the Nigerian military to suppress local opposition to oil exploration. A divided panel of the Second Circuit rejected the Kiobel claim by reasoning that corporate liability was not customary international law, such that the claim lay outside the Alien Tort Statute's jurisdiction.

To discuss these issues, we are lucky to have two distinguished international law professors who each signed amicus briefs in the case, on either side. Julian Ku of Hofstra Law School signed a brief for professors of international law, foreign relations law and federal jurisdiction (PDF) that argued both that the original meaning of the Alien Tort Statute was far narrower than its current application and that the Kiobel suit was unwarranted based on Supreme Court precedent. David Weissbrodt, the Regents Professor and Fredrikson & Byron Professor of Law at the University of Minnesota Law School, signed a brief for international law scholars (PDF) that argued, conversely, that the suit was a legitimate application of international law through the Alien Tort Statute, and that the Second Circuit had misconstrued the international law in this case.

We welcome Professors Ku and Weissbrodt to Point of Law to discuss this important case. The featured discussion will be available below; please check back throughout the week as the discussion continues.

Around the web, August 11 - PointOfLaw Forum

  • Exxon Mobil asks for en banc review of 2-1 DC Circuit decision with expansive view of Alien Tort Claims Act. [BLT; Doe v. Exxon Mobil petition for rehearing en banc]
  • Loser pays in action: Mattel's unsuccessful suit against competitor trying to take credit for competitor's successful Bratz dolls will now require it to pay other side's $137 million legal bill. [Volokh]
  • CJAC seeks disclosure of Orange County's contingency-fee arrangement with private law firm against Toyota over bogus sudden-acceleration theory. [BLD]
  • Million dollars in legal fees over a dispute about burger smells that was resolved with $90,000 ventilation system. [BLT]
  • Rescuers sue woman they saved from burning vehicle. [AP/law.com]
  • Dodd-Frank side effect: devastation of Congo. [NYT via Bader and OL]
  • "Havana Club" brand name not misleading because bottle label acknowledges that the rum is manufactured in Puerto Rico. [Bloomberg]
  • Watch what you say about lawyers: Public Citizen sued for writing about litigious lawyer's 100-page pro se complaint. [Levy @ CLP Blog]
  • Richard Epstein and John Yoo have a podcast. [Ricochet]
  • Colorful opinion: "Madder than mosquitos in a mannequin factory." [Olson]

Alien Tort Claims Act: Kiobel cert petition - PointOfLaw Forum

Last year, a divided Second Circuit decided Kiobel v. Royal Dutch Petroleum, which ended three decades of abusive application of the Alien Tort Statute—an eighteenth-century federal law—against innocent-bystander corporate defendants through application of amorphous concepts of international law. The losing plaintiffs have submitted a certiorari petition noting the circuit split with the Eleventh Circuit. [SCOTUSblog via Bashman; Jackson]

Kenneth Anderson has details about today's Second Circuit decision in Kiobel v. Royal Dutch Petroleum. See also Julian Ku.

Update: More from Kenneth Anderson.

Think Globally, Sue Locally - PointOfLaw Forum

Yesterday morning, at a conference co-sponsored by the Manhattan Institute, the Institute for Legal Reform at the U.S. Chamber of Commerce released a new paper entitled "Think Globally, Sue Locally: Out-of-Court Tactics Employed by Plaintiffs, Their Lawyers, and Their Advocates in Transnational Tort Cases" (PDF). In cases involving the 1789 Alien Tort Statute as well as other litigation -- including U.S. litigation to enforce dubious, fraudulently obtained foreign verdicts -- plaintiffs' lawyers are increasingly trying to use American courts to recover for alleged conduct that happened overseas. As the report documents, such litigation is typically accompanied by out-of-court media, community organizing, investor-relations, and political tactics.

The study author, Jonathan Drimmer, wrote this piece in The Wall Street Journal discussing his findings.

Around the web, April 19 - PointOfLaw Forum

  • Alien Tort Statute: Citing lack of causation, judge dismisses case tying Mideast terror to oil sales [Russell Jackson]
  • A history of federal intervention in executive pay [Bachelder, NYLJ/Harvard Corporate Governance Blog via Bainbridge]
  • McKool law firm of Dallas does well on patent-suit contingency work [WSJ Law Blog]
  • St. Clair County, Ill., nearby sibling of Madison, attracting many asbestos cases [Hartley, more]
  • Bill moving through Connecticut legislature would limit use of criminal background checks on workers [Daniel Schwartz]
  • The kind of pre-emption products liability plaintiffs adore [Beck et al]

Jonathan Drimmer on the Talisman ATS ruling - PointOfLaw Forum

In Presbyterian Church of Sudan v. Talisman Energy, the Second Circuit recently held that "aiding and abetting liability [in Alien Tort Statute suits over alleged international human rights violations] attaches only where plaintiffs can show that defendants act with the purpose of facilitating an underlying violation." Jonathan Drimmer of Steptoe & Johnson analyzes the case in a Backgrounder (leads to PDF) for the Washington Legal Foundation, and concludes: "Talisman's purpose test creates a higher barrier for plaintiffs pursuing ATS suits than the knowledge test in use elsewhere, and it will limit corporate ATS cases to some extent. Yet the holding is confined to the Second Circuit, plaintiffs have found success under other theories of liability, and evidence sufficient to show knowledge can sometimes create an inference of intent. So while Talisman will have an impact, corporations are not yet out of the ATS woods. "

Germany's Daimler -- which is also objecting to the South African government's turnabout on the suit -- and Barclays Bank are among those protesting the creative legal theories. Earlier here.

More: Princeton Lyman (Council on Foreign Relations), NYT op-ed. And also on the Alien Tort Statute, here's a YouTube video in which Linda Kelly, director of legal education programs for the Searle Center on Law, Regulation, and Economic Growth at Northwestern Law, discusses the center's efforts related to the statute.

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