Blog: U.S. Supreme Court
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February 28, 2012
Posted by Tyler Giannini and Susan Farbstein
We’re in Washington DC, in front of the U.S. Supreme Court, with our team of clinical students. The Kiobel oral argument will take place this morning. The blogs and op-eds have been busy over the last week in anticipation of the argument. If you want to catch up, some links are below.
February 23, 2012
Posted by Tyler Giannini and Susan Farbstein
NO CORPORATE EXEMPTION: SUPREME COURT TO HEAR MAJOR CORPORATE HUMAN RIGHTS CASE
February 22, 2012
Next Tuesday, the Supreme Court will hear oral arguments in Kiobel v. Royal Dutch Petroleum Co. Kiobel is the most important human rights case the Court will consider this term, raising fundamental questions about corporate accountability. The Plaintiffs allege that Royal Dutch/Shell was complicit in the Nigerian government’s torture and killing of their relatives in the 1990s. The Supreme Court is reviewing a lower court decision that created a corporate exemption from liability under the Alien Tort Statute (“ATS”), concluding that corporations cannot be sued even when they facilitate genocide, crimes against humanity, or war crimes.
The ATS, a 1789 law passed by the First Congress, permits non-U.S. citizens to hold perpetrators accountable in U.S. courts for violations of international law. In the fall of 2010, however, the Second Circuit Court of Appeals in New York created the corporate exemption now under review. Since the Second Circuit’s decision, every other appellate court to consider the issue has rejected Kiobel’s approach. Recognizing the importance of this question and the split among the lower courts, the Supreme Court agreed to hear the case.
Yesterday, the Plaintiffs filed their final brief before the oral argument. They noted the profound ramifications of the lower court’s holding:
The implications of the decision below are shocking. When I.G. Farben exploited slave labor at Auschwitz and supplied the Zyklon B poison to facilitate mass murder in its death chambers, that corporation violated international law. [Defendants’] construction of the ATS means that even a modern-day I.G. Farben could not be sued under the ATS. Nor could a “Pirates, Inc.” engaged in contemporary piracy, or an entity incorporated to engage in slavery.
Given the significance of blanket immunity for corporate human rights abuse, it is no surprise that the U.S. government has weighed in with an amicus curiae brief in support of the Plaintiffs. The U.S. government noted that corporations are certainly capable of violating international law, and found “no good reason to conclude that the First Congress would have wanted the suit to proceed only against the potentially judgment-proof individual actor, and to bar recovery against the company on whose behalf he was acting.” The government’s brief further observed that “[c]orporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our ‘legal culture.’”
For fifteen years before Kiobel, the statute enabled survivors of corporate human rights abuse to pursue accountability here, when it was otherwise unavailable. For example, Plaintiffs sought redress for corporate complicity in forced labor in Burma, apartheid in South Africa, and extrajudicial killings in Nigeria. While only cases against companies involved in such egregious human rights violations moved forward, no court contemplated a corporate shield from liability. With Kiobel, the Supreme Court has an opportunity to reaffirm the U.S. commitment to provide justice to survivors of egregious human rights abuse. Relief from suffering should not depend on whether an individual or a corporation is responsible for the violation.
December 22, 2011
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.
- Susan Farbstein, Associate Clinical Director, Human Rights Program, Harvard Law School: 617-835-8257, [email protected].
- Tyler Giannini, Clinical Director, Human Rights Program, Harvard Law School: 617-495-9263, [email protected].
- Cara Solomon, Communications Coordinator, Human Rights Program, Harvard Law School: 617-495-9214, [email protected]
December 1, 2011
Posted by Cara Solomon
For those of you following Kiobel news, Tyler and Susan have submitted their closing statement in PENNumbra’s online debate, arguing that the Second Circuit’s ruling ignores history in creating a corporate carve-out. The U.S. Supreme Court is due to hear the Kiobel v. Royal Dutch Petroleum Co. case early next year, deciding for itself whether corporations can be held liable for violations of international law.
October 17, 2011
Posted by Tyler Giannini and Susan Farbstein
The Supreme Court announced today that it will hear arguments in Kiobel v. Royal Dutch Petroleum Co., an Alien Tort Statute (ATS) case that squarely presents the question of whether corporate liability exists under the statute. Since June, when the plaintiffs in Kiobel filed their petition for certiorari, there have been significant developments around the question of corporate ATS liability as two courts of appeals rejected the Kiobel position. In taking the case, the Supreme Court should resolve this split in the lower courts. The hearing will occur during the 2011-2012 term, and a decision can be expected by June 2012. Kiobel involves allegations against Royal Dutch/Shell for its complicity in egregious human rights violations, such as extrajudicial killings, in the mid-1990s in Nigeria. Of note, the Court combined argument in Kiobel with Mohamad v. Rajoub, which poses the question of whether corporations may be held liable under the Torture Victim Protection Act (TVPA).
June 18, 2011
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.”Continue Reading…
February 10, 2011
“Reproductive Rights and the U.S. Supreme Court”
February 14, 2011
12:15- 1:15 pm
This brown bag talk features Priscilla “Cilla” Smith, an attorney and Senior Fellow at the Information Society Project at the Yale Law School. Her current project focuses on ways to shift and expand reproductive rights dialogues within the legal academy, with particular attention to information policy and new technologies.
Smith served as the Director of the Domestic Legal Program of the Center for Reproductive Rights from 2003 to 2007 and was a litigating attorney with the Center for 13 years. She litigated cases nationwide, most notably arguing two cases before the U.S. Supreme Court. Smith also developed and edited the first edition of “What if Roe Fell?” in which the Center examines the probable impact of a reversal of Roe V. Wade in all 50 states.
This event is co-sponsored by Harvard Law Students for Reproductive Justice.
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