June 8, 2011
What’s So Hard About International Law?
Posted by Susan Farbstein
It’s foolish to predict how a court will rule based on oral argument. But a judge’s questions can sometimes offer insight into her perspectives on particular issues. As our former Dean, now Justice, Elena Kagan has noted, “Oral argument provides the first chance for you to see what your colleagues might think about a case, what’s worrying them about a case, what interests them about a case.” And exchanges between judges and counsel can be quite electric, as was the case last week when the Seventh Circuit heard argument in the Boimah Flomo v. Firestone Natural Rubber Co. Firestone appeal.
The Firestone case brings claims under the Alien Tort Statute (ATS) for child labor practices on Firestone’s rubber plantations in Liberia. The International Human Rights Clinic filed an amicus curiae brief on behalf of legal historians in support of the plaintiffs. While the appeal presents many important legal issues, the key question in this case—and in most corporate ATS cases in this post-Kiobel era—is whether corporations can be held liable under the statute.
Tyler and I traveled to Chicago for the argument since we were curious to learn how the Seventh Circuit would handle the corporate liability question. The panel was composed of Judges Bauer, Manion, and Posner. Despite my reluctance to offer any predictions, Judge Posner’s sharp questions at least seemed to reveal real concerns about the majority’s reasoning in Kiobel.
For those who have time and interest, the recording of the argument is available here (Case No. 10-3675) and it’s worth listening to in its entirety. The opening exchange between Judge Posner and Firestone’s counsel, Brian Murray, sets the tone:
Murray: May it please the Court. In Sosa the Supreme Court reiterated a dozen times that outside such established matters as piracy—
Judge Posner: No no no. Forget Sosa. Sosa has that footnote that indicates that persons and corporations can be liable. We’re not going to get anywhere with Sosa.
Murray: It certainly does your honor, and that’s the point. Outside of three narrow, modest norms—
Judge Posner: Look, suppose Firestone went to the Liberian authorities and said, “You know, we really want to reduce our labor costs, so could you just enslave some of your people and sell them to us? And we’re going to use slave labor for this rubber because it’s going to be cheaper.” Now if they did that, do you think the corporation would not be liable under the Alien Tort Statute because it’s a corporation?
Murray: Well, we have to talk about—
Judge Posner: Answer my question.
Murray: No, I don’t think they would be your honor.
Judge Posner: Well, okay, you’ve lost me, but go ahead.
Powerful stuff. Judge Posner followed-up with another vivid hypothetical:
Judge Posner: What if fifty percent of the kids die within a year and Firestone knows about it and says, “Yeah, well, you know, we’ve got to keep our costs down,” and you say that wouldn’t be actionable. . . . I’m asking you, suppose Firestone says, “We know that when these kids are working on the rubber plantation they have a life expectancy of six months.” And you’re saying that wouldn’t violate any norm of international law. Is that what you’re saying?
Murray: No, your honor, I don’t believe it would. That’s the hard part of international law.
Judge Posner: I don’t know what’s hard about it. Your position strikes me as ridiculous. I don’t get it. I mean there clearly is this norm about the worst forms of child labor and the case I’m giving with the six-month life expectancy certainly is an example of a worst form of child labor abuse.
Why, Judge Posner later asked, should corporations that endorse slave labor or genocide be exempt from liability under the ATS? Why indeed.