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.