Blog: ATS

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April 15, 2015

Tomorrow, April 16: “Should There Be Liability If…”

 

April 16, 2015

“Should There Be Liability If…”

1:00 p.m.

Suffolk University Law School (Room 375)

120 Tremont Street, Boston

 

Join Tyler Giannini and Ariel Nelson of the International Human Rights Clinic at Harvard Law School for a discussion about the live issues in Alien Tort Statute (ATS) litigation, including whether torturers and other human rights abusers can use U.S. soil to shield themselves from accountability. Giannini and Nelson will examine current trends in the courts in the wake of the Supreme Court’s decision in Kiobel in 2013. Since that time, the Clinic has authored numerous amicus briefs in major ATS cases around the country, and is co-counsel in two major ATS cases—one stemming from corporate complicity in Apartheid-era crimes and the other involving alleged extrajudicial killings that occurred in Bolivia in 2003.

November 9, 2011

Online Debate: “Will Kiobel Be Just An Aberration?”

Posted by Cara Solomon

Here’s the latest from Susan and Tyler on the Kiobel front: their opening statement in an online debate over at PENNumbra,  a publication of the University of Pennsylvania Law Review.

The debate poses the critical question, “Will Kiobel Be Just An Aberration?”

Next up is a response from Anthony Clark Arend, Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.  Then each side submits a closing statement.

Stay tuned!

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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 SosaSosa 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.

Continue Reading…

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June 8, 2011

Kiobel Plaintiffs File Petition for Certiorari

Posted by Susan Farbstein

The plaintiffs in Kiobel v.  Royal Dutch Petroleum Co. filed their petition for certiorari on Monday.  They present three main arguments in support of issuing the writ.

First, the plaintiffs assert, review is necessary because the Kiobel majority’s decision conflicts with Supreme Court precedent governing subject matter jurisdiction.  In short, the issue of whether corporations can be sued under the Alien Tort Statute (ATS) is a merits-based question because it concerns the reach of the statute, not a court’s adjudicatory power.

Second, the plaintiffs note, Kiobel generated a circuit split on the issue of corporate liability under the ATS.  The Eleventh Circuit has rejected arguments that corporations are exempt from suit under the ATS in both Romero v. Drummond and Sinaltrainal v. Coca-Cola.

Finally, the plaintiffs urge review because the Kiobel decision conflicts with Sosa: it ignores the text, history, and purpose of the ATS; misinterprets footnote 20 in the Sosa decision; overlooks the fact that international law leaves the choice of how to enforce international obligations to domestic jurisdictions; and ignores general principles of law, which provide for corporate liability for serious human rights violations, as a source of international law.

We’ll obviously be keeping a close eye on this one, and will post supporting amicus briefs, the opposition brief, and the reply brief as they are filed.

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January 28, 2011

Q & A with Jim Cavallaro, Executive Director of the Human Rights Program

Posted by Cara Solomon

This week marked the start of the spring semester and the third snowstorm of the year.  Right in the thick of it, we welcomed 40 students into the International Human Rights Clinic.  We also started this blog, which will focus mainly on the projects and people associated with the Clinic.

It seemed like a good time to check in with Jim Cavallaro, Executive Director of the Human Rights Program (HRP).  And so we did.

Jim interviews prisoners last semester as part of an ongoing clinical project in Panama

What attracted you to HRP?

When I came in 2002, I had already spent nearly two decades working as a human rights lawyer in Latin America—in Chile during the last years of the Pinochet dictatorship, and then for nearly a decade in Brazil, working on criminal justice issues, transitional justice, racial discrimination, violence against women and indigenous issues.  I had a lot of real world experience, but I hadn’t had the opportunity to step back and reflect, or to put what I had learned to use as a teacher.  HRP gave me the opportunity to continue my work as an activist—my first passion—but also to work closely with students, and to reflect on human rights and the human rights movement.

It’s proven to be the perfect fit for me.  I love the students’ energy and their sense that anything is possible.  To be honest, their commitment and drive has been the engine behind the remarkable growth of the clinic and the program this past decade.

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