Blog: Firestone

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September 14, 2011

What the Courts Did Over Our Summer Vacation: Three Days that Redefined the Corporate ATS Landscape

Posted by Susan Farbstein

It’s still 80 degrees and sunny in Cambridge, but I know summer is over because the students are back, roaming the halls and knocking on my office door.  Many are asking the same question: what happened in the corporate Alien Tort Statute (ATS) world over the summer?  The short answer is: a lot.  Here’s a quick summary to get folks up to speed.

The plaintiffs in Kiobel v. Royal Dutch Petroleum Co.  filed their petition for certiorari in early June, asking the Supreme Court to reverse the Second Circuit’s decision that corporations cannot be held liable under the ATS.  Amicus briefs from international human rights organizations, international law scholars, former ambassador David Scheffer, and professors of legal history—the last submitted by our own International Human Rights Clinic—supported the petition.

Then something interesting happened: in a matter of three days, two opinions were issued that transformed the Second Circuit’s Kiobel decision from defining the landscape to becoming an outlier.

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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.

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