Blog: Russell Kornblith

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December 5, 2012

A Question of Accountability: The Clinic’s Take on the Alien Tort Statute

Note: this article was written by Cara Solomon and originally published in Harvard Law Bulletin

A Question of Accountability

In a Supreme Court case, the International Human Rights Clinic argues that the Alien Tort Statute applies to corporations

It started off with an insult: A French adventurer, standing in the streets of Philadelphia, called the ambassador of France a nasty name. And perhaps if it had ended there, the Alien Tort Statute might never have come to be.

But language was not enough for the Chevalier de Longchamps, who was nursing a grudge. He lunged toward the ambassador. He hit the ambassador’s cane with his own. And in assaulting a foreign ambassador, Longchamps committed a violation of the law of nations.

It was 1784. The incident in Philadelphia drew international attention; then condemnation; then ridicule, as the Continental Congress lacked the power to take meaningful action in response.

Five years later, as part of the First Judiciary Act, the founders sent a strong message with what they called the Alien Tort Statute: “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.”

It was an important gesture to the international community—a symbol of solidarity, historians would say: We will open up our new federal court system to victims of violations of the law of nations. The United States had arrived.

Part I

On the morning of Feb. 28, 2012, a team from Harvard Law School’s International Human Rights Clinic took their seats in the U.S. Supreme Court. Sitting directly behind petitioners’ counsel were Clinical Professor Tyler Giannini and Assistant Clinical Professor Susan Farbstein ’04, nationally recognized leaders in Alien Tort Statute litigation, and co-directors of the clinic.

They had waited months to hear oral arguments in Kiobel v. Royal Dutch Petroleum Co., a case that would test the limits of the centuries-old ATS. It was the highest-profile human rights case to come before the Supreme Court in years.

Even before the Court granted certiorari, Kiobel had become an international flash point for the debate on corporate accountability, generating nearly 40 amicus briefs analyzing the ATS from every angle—foreign policy, the global economy, the international human rights movement. HLS staff, students and alumni were involved on both sides of the issue. For its part, the clinic filed a brief on behalf of legal historians, in support of petitioners.

Illustration by Justin Renteria, courtesy of Harvard Law Bulletin

Illustration by Justin Renteria, courtesy of Harvard Law Bulletin

“What’s at stake in Kiobel is the future of the ATS itself, and whether it will remain an example of how the United States takes its international legal obligations seriously,” said Farbstein.

Kiobel began like any other ATS case in recent memory—with allegations against a company or an individual for violations of international law. Esther Kiobel and 11 other members of the Ogoni people in Nigeria filed suit

against Shell in 2002, alleging crimes against humanity, including complicity in torture and extrajudicial executions. At issue: the company’s actions from 1992 to 1995, when the Ogoni were protesting oil development activities on their land.

Because Shell does much of its business in the United States, the courts agreed to hear the case. But on appeal, the 2nd Circuit turned its attention away from the case and toward the statute itself, dismissing Kiobel on the grounds that corporations could not be held liable under the ATS.

For observers of the ATS, this came as a surprise: For years, courts had allowed cases to proceed on the presumption that corporations were as liable as individuals for violations of international law.

“No one had really questioned it,” said Jenny Martinez ’97, a professor at Stanford Law School and one of the amici represented by the clinic. “It did seem rather obvious.”

After the 2nd Circuit’s ruling, other appellate courts went in the opposite direction, finding corporate liability perm

issible under the ATS—in cases against Exxon Mobil Corp. for violence in Indonesia, the Rio Tinto mining group for violence in Papua New Guinea, and Firestone tire company for child labor in West Africa.

“It was clear from the split in the lower courts that the question in Kiobel—whether a corporation could be held liable—was a central and fundamental threshold question that had to be clarified,” said Giannini.

Sooner or later, he said, the issue was headed to the Supreme Court.

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June 14, 2012

History Shows That Those Who Commit International Law Violations Outside the United States Can Be Held Liable in U.S. Courts

PRESS RELEASE

Clinic files amicus curiae brief with U.S. Supreme Court on behalf of legal historians in major Alien Tort Statute case

June 14, 2012, Cambridge, MA—Harvard Law School’s International Human Rights Clinic has submitted a supplemental amicus curiae brief to the U.S. Supreme Court in support of petitioners in a major Alien Tort Statute (“ATS”) case, Kiobel v. Royal Dutch Petroleum Co. Nine eminent legal historians joined the brief as amici: William R. Casto, Charles Donahue, Robert W. Gordon, Nasser Hussain, Stanley N. Katz, Michael Lobban, Jenny S. Martinez, and Anne-Marie Slaughter.

Clinical Directors Susan Farbstein and Tyler Giannini served as counsel for the amici, who argue that Congress, when enacting the statute, did not intend to restrict its territorial reach. Rather, the ATS was passed to address universally-condemned violations of the law of nations, such as piracy.

“This statute was clearly designed to open U.S. courts to those who suffered egregious violations of international law, wherever they are committed,” said Tyler Giannini, Clinical Professor of Law at Harvard Law School. “The framers had in mind abuses like piracy, which necessarily takes place outside the United States.”

The U.S. Supreme Court heard oral arguments in Kiobel in late February and a week later requested supplemental briefing on the question of whether the statute encompasses violations committed outside the territory of the United States. The case, which has attracted international attention, involves claims for human rights abuses committed in Nigeria.

“Kiobel is one of the most significant human rights cases to come before the U.S. Supreme Court in years,” said Susan Farbstein, Assistant Clinical Professor of Law at Harvard Law School. “As a team, we felt honored to do the work of clarifying the historical record on how the courts have traditionally interpreted the ATS and the legal doctrines it embodies.”

Historical documents unearthed by the Clinic’s research team in British and American archives confirm that, from the outset, survivors could bring ATS claims for violations of international law occurring outside the United States. In one of the earliest interpretations of the statute, dating to 1795, the U.S. Attorney General opined that individuals harmed in a raid in British Sierra Leone could use the ATS to seek redress in U.S. courts.

“It’s been gratifying to see the principles of justice are transcendent throughout history,” said Russell Kornblith, JD ’12, who was a key member of the project team.

In addition to Kornblith, clinical students Poppy Alexander, JD ’12, Yonina Alexander, JD ’12, and Daniel Saver, JD ’12, contributed countless hours towards the brief, working in close collaboration with the amici. The Harvard team was supported by international researchers, including students from the School of Oriental and African Studies under the supervision of Deval Desai, LLM ’09.

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June 13, 2012

Clinic Files Supplemental Brief with the U.S. Supreme Court in Kiobel Case

Posted by Tyler Giannini and Susan Farbstein

After months of hard work, the International Human Rights Clinic filed today a supplemental brief of amici curiae professors of legal history with the U.S. Supreme Court in support of petitioners in Kiobel v. Royal Dutch Petroleum Co. We’ll post more about this tomorrow, after we’ve gotten a good night’s sleep.

For now, we wanted to say that this wouldn’t have been possible without the superlative work of our students (and now graduates), Poppy Alexander ’12, Yonina Alexander ’12, Russell Kornblith ’12, and Daniel Saver ’12. We’re so fortunate to be able to work with such talented individuals every day.

April 3, 2012

Belated Thanks

Posted by Cara Solomon

A big and belated thanks goes out to the 3Ls and 2L who showed up at the Clinical Fair last Wednesday to help us introduce the International Human Rights Clinic to prospective students.  We were lucky enough to have a steady stream of 1Ls at our table, and our students engaged them all, offering insight into the clinical experience, and advice on how to get the most out of it.

A special thanks goes to Russell Kornblith, JD ’12, who kept up his enthusiasm through two straight hours of talking.  We’re also grateful to Yonina Alexander, JD ’12, Christina Chinloy, JD ’12, Poppy Alexander, JD ’12, Daniel Saver, JD ’12, Clara Long, JD ’12, and James Tager, JD ’13.

We appreciate all you did that night, and all you continue to do to strengthen and improve the Clinic.  Pics of yourselves (and two of our clinicians) below!

Christina Chinloy, JD ’12, talks to a student about her clinical experience, working on projects in Panama and Brazil, among others.

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March 2, 2012

Camping Out for Kiobel

Posted by Yonina Alexander, JD ’12, and Daniel Saver, JD ‘12

Rumor had it that if we wanted much-coveted tickets to the oral argument in Kiobel v. Royal Dutch Petroleum Co., we would have to arrive at the U.S. Supreme Court very, very early.  The gallery of the Court is fairly small, and there are only a limited number of seats available each day to the general public. After a few phone calls and some internet research, we decided 4:00 am would do the trick.

On the steps of the U.S. Supreme Court after oral argument: Clinical Director Tyler Giannini, Yonina Alexander, JD ’12, Poppy Alexander, JD ’12, Russell Kornblith, JD ’12, Daniel Saver, JD ’12, and Associate Clinical Director Susan Farbstein.

Then, at 10:00 pm the night before the argument, we heard from a friend that 20 people were already lined up outside the Court. After putting in countless hours working on the Legal Historians amicus curiae brief for the case this past fall, we were bound and determined to be inside the Court when the justices heard the case. Totally unprepared to spend the night outside, we decided to head over anyway.

Armed with a bag of fruit, little to protect us from the elements, but plenty of good energy to make up for it, we arrived at the steps of the Court at 11:30 pm.  A couple dozen other law students, all of whom had contributed to the case in some capacity, greeted the four of us as we took our places in line—numbers 28 to 32.  As the night wore on, others joined the line, and we huddled in the cold, sharing food, war stories, and predictions of what the morning would bring.

There was a sense of camaraderie in the group. We had never met most of these students, but we all shared a commitment to the issue at hand—corporate accountability for human rights violations.  Sometime before dawn, a police officer referred to the gathering as “kind of like a rock concert—but for nerdy law students.”

At 7:30 am, the big moment arrived.  Police officers handed us gold-colored tickets with numbers, and told us the first 40 would be admitted.  We’d done it.  We’d made it in.

We entered through the side door, exchanged our sweatshirts for suits in the bathrooms and, minutes before the oral argument began, walked into the grand chambers of the Court’s gallery.

It struck us at that moment—and often in the hours before—that we were among the lucky.  As students at Harvard Law School, we had the opportunity to fly to Washington, D.C. and wait all night to witness this historic argument.  For many others who deeply cared about the case, that was not an option.

Inside the Courtroom, we sat flanked by stone-colored colonnades and heavy, red curtains, listening to the argument unfold. It was tense for all of us, trying to divine where the justices stood on the issues. Then, in an exchange with the Defendants’ counsel, Justice Stephen Breyer read out a line from our brief.  To hear those words echo through the chambers of the United States Supreme Court was a once-in-a-lifetime experience.  We feel so fortunate to have worked with the rest of the team from the International Human Rights Clinic on a case with this much at stake.

Yonina Alexander, JD ’12, and Daniel Saver, JD ’12, have been members of the Clinic for the past four semesters.

For more information on Kiobel, click here for our resource page, or here for past coverage on the blog.

February 28, 2012

Update from the Steps of the U.S. Supreme Court

Posted by Cara Solomon

Just got word from Daniel Saver, JD ’12: everyone on the clinical team made it into the U.S. Supreme Court for oral argument on Kiobel.  Given all the buzz around this case, there were real questions as to whether that would happen. Susan, Tyler, and Marissa Vahlsing, JD ’11, already had tickets.  But it took several hours of waiting for Daniel, Yonina Alexander, JD ’12, Poppy Alexander, JD ’12, and Russell Kornblith, JD ’12, to get theirs.

Poppy Alexander, Russell Kornblith, Yonina Alexander, and Meghan Morris wait in line outside the U.S. Supreme Court, hoping to get tickets to hear oral arguments in Kiobel.

According to an email from Daniel, the group settled into line last night around 11:30pm.  Minutes later, by chance, they ran into Meghan Morris, JD ’08, whom Daniel described in the email—with exclamation points, of course—as an HRP legend.  Nobody slept last night, he said—they were huddled together for warmth.

Stay tuned for more Kiobel updates.

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December 22, 2011

Clinic Files Amicus Curiae Brief with U.S. Supreme Court on Behalf of Legal Historians

PRESS RELEASE

Brief in Kiobel v. Royal Dutch Petroleum Co. argues that corporations can be held liable
for violations of the law of nations under the Alien Tort Statute

December 21, 2011, Cambridge, MA—Harvard Law School’s International Human Rights Clinic has submitted an amicus curiae brief to the U.S. Supreme Court in support of petitioners in a major Alien Tort Statute (“ATS”) case, Kiobel v. Royal Dutch Petroleum Co.  Nine eminent legal historians joined the brief as amici: Barbara Aronstein Black, William R. Casto, Martin S. Flaherty, Robert W. Gordon, Nasser Hussain, Stanley N. Katz, Michael Lobban, John V. Orth, and Anne-Marie Slaughter.

Associate Clinical Director Susan Farbstein, JD ’04, and Clinical Director Tyler Giannini served as counsel for the amici, who argue that Congress enacted the statute so that plaintiffs would have a meaningful civil remedy in federal court for violations of international law.  The brief outlines how creating a special exemption for corporate defendants, as the Court of Appeals did in Kiobel, contradicts the original purpose of the ATS as well as its plain text.

“Excluding corporations from liability for the most egregious violations of international law ignores the Founders’ purpose in enacting the ATS,” said Giannini.  “Long before the ATS was passed, courts were holding entities such as the British East India Company accountable for the wrongs they committed.”

Poppy Alexander, JD ’12, and Russell Kornblith, JD ’12, served as student leaders on the team that assisting with drafting.  Clinical students Yonina Alexander, JD ’12, Catherine Fischl, JD ’12, and Daniel Saver, JD ’12, also contributed to the brief.

“The project presented a unique opportunity to work closely with a talented team of students and professors, who were all dedicated and focused on the same end goal,” Poppy Alexander said. Kornblith added, “I feel incredibly privileged to have been a part of this team whose work spanned three countries and four centuries.”

Since the U.S. Supreme Court granted certiorari in the case, more than a dozen other HLS students and alumni around the world have contributed to an international research effort supporting for the brief: Bradford Adams, JD ’12, Sam Birnbaum, JD ’14, Tess Borden, JD ’14, Nikolas Bowie, JD ’14, Carly Cohen, JD ’13, Elizabeth Floyd, JD ’14, Josh Frieman, JD ’13, Meghan Heesch, JD ’12, Julian Hill, JD ’14, Clara Long, JD ‘12, Meg McDermott, JD ’13, Julien Savoye, LLM ’12, and Sarah Wheaton, JD ’14.  In addition, Deval Desai, LLM ’09, supervised a team of students at the School of Oriental and African Studies who contributed research assistance: Mary Johnson, LLM ’12, Catherine Lancaster, MA ’12, Allison Lindner, LLM ’11, Whitney Purdum, MA ’12, Luke Smitham, MA ’12, Anjana Varma, MA ’12, and Jessica Whelligan, LLM ’12.

Kiobel should be reversed because it departs from more than a decade of jurisprudence holding corporations liable under the statute,” said Farbstein.  “If left to stand, the decision would deprive survivors of corporate misconduct of a valuable tool for seeking justice, contrary to the intent of the Founders.”

In Kiobel, Nigerian plaintiffs filed claims for extrajudicial killing, torture, crimes against humanity, and prolonged arbitrary arrest and detention. The plaintiffs allege that Royal Dutch Petroleum collaborated with the Nigerian government to commit these violations in order to suppress their lawful protests against oil exploration.  In a September 2010, ruling, the Second Circuit became the first appellate court to reject the proposition that corporations may be held liable under the ATS for torts in violation of international law.

Kornblith noted that, “Courts have held corporations responsible for their actions for centuries, and the lessons of the past cannot become the mistakes of tomorrow.” Alexander continued, “We cannot forget that in spite of the work we did, there are a lot of people with a lot more riding on this. It has been a privilege to work for justice for them.”

Oral argument before the Supreme Court has been scheduled for February 28, 2012, and a decision is expected by June 2012.

Contacts:

  • Susan Farbstein, Associate Clinical Director, Human Rights Program, Harvard Law School: 617-835-8257, sfarbstein@law.harvard.edu.
  • Tyler Giannini, Clinical Director, Human Rights Program, Harvard Law School: 617-495-9263, giannini@law.harvard.edu.
  • Cara Solomon, Communications Coordinator, Human Rights Program, Harvard Law School: 617-495-9214, csolomon@law.harvard.edu

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June 18, 2011

Clinic Files Amicus Curiae Brief with U.S. Supreme Court

PRESS RELEASE

Brief in major corporate Alien Tort Statute case argues, on behalf of legal historians, that corporations can be held liable
for supporting and assisting human rights violations

June 17, 2011, Cambridge, MA—Harvard Law School’s International Human Rights Clinic submitted an amicus curiae brief to the Supreme Court today in support of a petition for certiorari in a major corporate Alien Tort Statute (ATS) case, Kiobel v. Royal Dutch Petroleum Co.

The Clinic served as counsel of record on behalf of professors of legal history who argue that Congress adopted the ATS to provide plaintiffs with a meaningful domestic remedy in federal court for violations of international law.  According to the amici, creating a special exemption for corporate defendants, as the Second Circuit did in Kiobel, contradicts the original purpose of the statute as well as its plain text, and ignores the history of enforcement of international law violations against corporations.

“Dating back to the 1600s, with cases against the East India Company involving violations of international law, the historical record shows that the Second Circuit erred in its ruling,” said Clinical Director Tyler Giannini.  “The drafters of the Alien Tort Statute wanted to provide a broad remedy for all torts in violation of the law of nations, and the text of the statute excludes no class of defendant.”

Giannini and Associate Clinical Director Susan Farbstein served as counsel and supervised the writing of the brief.  Harvard Law School students Poppy Alexander, JD ’12, Russell Kornblith, JD ’12, and Marissa Vahlsing, JD ’11, contributed to the research, conceptualization, and drafting of the brief.

“We spent countless hours reading the cases and treatises that the framers of the ATS would have read,” Alexander said.  “To have the opportunity in law school to work this closely with a team that includes eminent legal historians, to help form an argument, and then to see it through to the end, is very special.”

The Kiobel opinion represents a significant departure from established ATS jurisprudence, and deprives survivors of corporate misconduct of a valuable tool for seeking justice.

“If the Second Circuit’s decision stands, a corporation could operate the modern-day equivalent of the Nazi death camps or trade in slaves, and it would be exempt from civil liability under the ATS,” Farbstein said.  “History shows that the statute’s drafters never would have contemplated such a corporate exception.”

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