Last week, the Supreme Court heard oral argument in Kiobel v Royal Dutch Petroleum, the case asking whether corporations can be liable in federal court for violations of international human rights law. In the decision under review, the Second Circuit – unlike every other circuit court to consider the question – had held that they could never be liable. So one might think that a logical way for the petitioners to begin their oral argument would be to give an example or two where international law had recognized corporate liability. And, in fact, Justice “Swing Vote” Kennedy hit the attorney for the petitioners with that very question before he had completed his opening statement.
It wasn’t a good sign when the attorney didn’t come up with any examples. (He might have pointed out that after World War II, the Allies broke up IG Farben because of its contributions to Nazi crimes – as Richard Posner noted in his opinion for the Seventh Circuit.) As a result, a general feeling after the oral argument was that the Supreme Court would probably affirm the Second Circuit by a 5-4 margin, with Kennedy in the majority.
But on Monday, the Court threw a spanner in the works, upset the apple cart, and stuck a spoke in the wheels of those expectations. More specifically, it scheduled the case for rehearing next term, asking the parties to address “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”
So the focus of the case now shifts from whether corporations can ever be liable for human rights violations, to whether any defendant can ever be liable for violations that occur in the territory of other countries. Expect to hear a lot about the Court’s jurisprudence on the presumption against extraterritoriality, which – to put it politely – it has not always applied consistently or predictably.
As a result, the stakes in Kiobel have become even higher for human rights advocates. The Court’s decision now has the potential to narrow the scope of possible federal claims even more than a decision affirming the Second Circuit would have done. Plaintiffs could try to work around a “can’t sue corporations” rule by suing individual corporate officials. But there may not be many human rights claims of any kind – against corporations, individuals, or governments – that will survive if the rule is “can’t sue for anything that happens in another country.” The time may be approaching when human rights attorneys and activists will have to look for other avenues to find relief for abuses of human rights. State courts, anyone?
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| March 7, 2012
Last week, the Supreme Court heard oral argument in Kiobel v Royal Dutch Petroleum, the case asking whether corporations can be liable in federal court for violations of international human rights law. In the decision under review, the Second Circuit – unlike every other circuit court to consider the question – had held that they […]
Daniel Farber | March 7, 2012
Cross-posted from Legal Planet. The U.S. Court of Appeals for the Fifth Circuit has upheld a district court ruling that the federal government is liable for damage from the Katrina storm surge that went up the MRGO canal into the city. As I read the opinion, it is limited in three ways. First, it is […]
Ben Somberg | March 6, 2012
On November 7 of last year, EPA sent the White House Office of Information and Regulatory Affairs (OIRA) a rather important proposed rule – one that will, in some way, limit greenhouse gas emissions from new power plants. The Greenhouse Gas New Source Performance Standard for Electric Generating Units for New Sources has now been […]
Robert Verchick | March 5, 2012
The BP Oil Spill case settled! Well, part of it. The smaller part. But, still, we must count this a victory for U.S. District Judge Carl Barbier, whose reported 72 million pages of assigned reading will inevitably be shaved down. (Does this man have an iPad?) On Friday evening the court announced that BP had […]
Rena Steinzor | March 2, 2012
The toll: An estimated 6,500 to 17,967 premature deaths, 9,867 non-fatal heart attacks, 3,947 cases of chronic bronchitis, and more than 2.3 million lost work and school days. That’s just a partial tally of the costs Americans will bear because of unjustified delays in two critical health and safety regulations. More broadly, the Administration’s Fall […]
Sidney A. Shapiro | February 28, 2012
A new Pew public opinion poll published last week shows substantial public support for specific types of regulation, but skepticism about regulation in general. While 70-89% of the public would either expand or keep current levels of five specific types of regulation, 52% say government regulation of business usually does more harm than good as […]
David Hunter | February 27, 2012
a(broad) perspective Today’s post is first in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties. Each month, this series will discuss one of these ten treaties. Agreement on the Conservation of Albatrosses and Petrels Adopted and Opened for Signature on June […]
| February 23, 2012
On February 28, the Supreme Court will hear argument in Kiobel v Royal Dutch Petroleum, a case with far-reaching implications for efforts to hold corporations accountable when they commit or are complicit in abuses of human rights. For over fifty years, Shell has extracted oil from Nigeria, causing great harm to the environment and people […]
Rena Steinzor | February 22, 2012
Imagine for a moment that you’rethe chief executive of a company that manufactures chemicals used in plastics that become consumer products, especially plastic picnic ware. The head of your product development lab reports that she has just gotten some troubling results regarding one of your biggest sellers—a chemical agent that makes it possible for plastic […]