Editor's Note :

Editor's Note :

This week we are hosting a symposium on Jesner v. Arab Bank, PLC, which asks whether the Alien Tort Statute categorically forecloses corporate liability. Contributions are available at this link.

Richard Herz is a senior litigation attorney at EarthRights International. ERI filed an amicus brief in support of the plaintiffs in Jesner v. Arab Bank, PLC.

Corporate legal personhood is a bedrock tenet of our law (and every other nation’s). Corporations have been given rights, including constitutional rights. And corporations can sue on their own behalf and be sued, including for torts. So there ought to be little question that corporations can be sued when they commit or abet the very worst kinds of torts: violations of universally recognized human rights, like terrorism or genocide.

Yet that is the question presented in Jesner v. Arab Bank, PLC. The case arises under the Alien Tort Statute, which gives federal courts jurisdiction to hear claims by aliens for torts committed in violation of international law. Nothing about the ATS suggests that it requires some special rule of corporate immunity. Every federal appellate court to have considered the question agrees that corporations may be sued under the ATS – except one. In Kiobel v. Royal Dutch Petroleum Co. (“Kiobel I”), a sharply divided panel of the U.S. Court of Appeals for the 2nd Circuit held that victims of human rights abuses cannot sue corporations under the ATS – no matter how horrific the abuse or extensive the corporation’s participation. In Jesner, the 2nd Circuit followed Kiobel I. That decision is wrong and would enshrine an illogical and harmful double standard.

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Petition of the day

By on Jul 27, 2017 at 12:28 pm

The petition of the day is:

16-1479

Issues: (1) Whether Minnesota’s criminal prohibition of “speech” that “enables” a suicide survives strict scrutiny under the First Amendment; and (2) whether Minnesota’s criminal prohibition of “speech” that “enables” a suicide violates the First Amendment.

 

Kristin A. Linsley is a partner at Gibson Dunn & Crutcher LLP. The views expressed herein are solely hers and do not necessarily represent the views of Gibson Dunn. In a previous position, she filed an amicus brief for the Coca-Cola Company and Archer Daniels Midland Company in support of the corporate respondents in Kiobel v. Royal Dutch Petroleum.

It is remarkable that the Supreme Court will again consider whether the Alien Tort Statute allows claims against artificial entities such as corporations. Many litigants and commentators thought that the court had washed its hands of that subject after it accepted the issue for review in Kiobel v. Royal Dutch Petroleum but then reframed the question after argument. Now that the question has returned to the court’s docket with Jesner v. Arab Bank, PLC, the parties and the justices will have to dust off their thinking on issues originally presented in Kiobel, including the nature of corporate liability, its status under international law, and whether its application in the U.S. courts should be governed by domestic or international law principles.

As to the first two questions, many sources have documented the lack of consensus among nations for extending international law status to artificial entities such as corporations. International-law precedents for such an extension are virtually nonexistent. Indeed, proponents of liability for corporations often maintain that courts must look to domestic law, not international law, to decide who is covered by international norms. Of the relevant international-law sources to which ATS plaintiffs look for their substantive human-rights norms – the Nuremberg trials, the ad-hoc tribunals for the former Yugoslavia and Rwanda, and the Rome Statute – not one extends such norms to corporations, nor is there any other evidence of a consensus among nations that such an extension would be appropriate.

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Thursday round-up

By on Jul 27, 2017 at 7:43 am

Briefly:

  • At Crime and Consequences, Kent Scheidegger weighs in on yesterday’s execution of an Ohio death-row inmate, carried out after the Supreme Court denied the inmate’s petition for a stay, in which the inmate had challenged the state’s lethal-injection protocol; he argues that “[w]e spend far too much in time and resources litigating issues that have nothing to do with guilt,” and that “[w]here the underlying offense is one for which death is a just punishment, as this one surely is, then a trial, a direct appeal, and one collateral review in state court is all that is needed for the penalty phase of the case.”
  • At the Washington Legal Foundation’s Legal Pulse blog, Mark Chenoweth lists “the top 10 cases the U.S. Supreme Court erroneously denied certiorari to last term” and maintains that “[t]hough a ready-made excuse was available this term, the Roberts Court is still not taking enough cases.”
  • At Supreme Court Brief (subscription required), Tony Mauro looks at a new Supreme Court brief-writing style guide written by Dan Schweitzer of the National Association of Attorneys General, which “is full of tips that are not hard and fast rules but … help advocates show that they know what justices like or don’t like.”
  • In the New Zealand Herald, Audrey Young reports that in remarks at Victoria University in Wellington, Chief Justice John Roberts “volunteer[ed] some criticism about how confirmation of judicial nominations had become political” and that “when asked to reflect on the relative roles of the political branch and the judicial branch,” Roberts called it “’very important for the judiciary to appreciate they are not part of the political process and … for the public to understand that.’”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Michael Barr is the Roy F. and Jean Humphrey Proffitt Professor of Law at the University of Michigan Law School. He filed an amicus brief for financial regulation scholars and former government officials in support of the plaintiffs in Jesner v. Arab Bank, PLC.

The Supreme Court has again decided to consider whether corporations can be liable for violations under the Alien Tort Statute. Jesner v. Arab Bank, PLC involves claims against Arab Bank under the ATS for allegedly knowingly and willfully financing terrorism by clearing transactions in support of terrorism through its New York branch.

Our amicus brief – filed on behalf of financial-regulation scholars and former government officials responsible for anti-terrorist-financing policy and enforcement – argues that a finding of corporate liability for banks is appropriate and consistent with U.S. policy and law. Preventing terrorist financing is a major policy goal of the United States. The U.S. Department of the Treasury has stated that disrupting the flow of funds to terrorists is an integral component of combating terrorism. Because the United States plays such a central role in the global financial market, denying terrorists access to the U.S. financial system is vital. Ensuring that terrorists do not have access to U.S. dollar clearing, the conversion of funds by a bank on behalf of a client from foreign currency into dollars, will help establish an environment less prone to terrorist financing.

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Petition of the day

By on Jul 26, 2017 at 12:32 pm

The petition of the day is:

16-1461

Issue: Whether, under Kiobel v. Royal Dutch Petroleum’s “touch and concern” test, courts must consider all connections Alien Tort Statute claims have to U.S. territory, as the U.S. Court of Appeals for the 4th, 9th, and 11th Circuits have held, or only the location of the alleged tort itself, as the U.S. Court of Appeals for the 2nd and 5th Circuits have held.

Anton Metlitsky is a partner at O’Melveny & Myers LLP. He filed an amicus brief for the Chamber of Commerce of the United States of America and other organizations in support of neither party in Jesner v. Arab Bank, PLC.

Enacted as part of the Judiciary Act of 1789, the Alien Tort Statute provides: “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.” Despite its Founding-era provenance, the ATS lay largely dormant until 1980, when the U.S. Court of Appeals for the 2nd Circuit held in Filartiga v. Pena-Irala that the statute authorized a Paraguayan national to bring a civil damages suit against a former Paraguayan police officer based on allegations of torture. The Supreme Court has construed the statute only twice since then – first in 2003 in Sosa v. Alvarez-Machain, and again in 2013 in Kiobel v. Royal Dutch Petroleum Co. (“Kiobel II”). The court will get its third opportunity this term, when it considers Jesner v. Arab Bank.

The legal question before the Supreme Court in Jesner is whether private plaintiffs may sue corporations (as distinct from natural persons) under the ATS to enforce certain human-rights norms. The question may seem odd at first blush, because the language of the statute itself does not differentiate between types of defendants, or even refer to the defendant at all. Thus, one might assume that suits against corporations under the ATS should be treated just as suits against individuals are.

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Wednesday round-up

By on Jul 26, 2017 at 7:07 am

Last night the Supreme Court, over a dissent by Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg, declined to block the executions of three Ohio men, including one who is scheduled to be put to death this morning. Amy Howe covers the court’s ruling for this blog. Additional coverage comes from Julie Carr Smyth at the Associated Press, Mark Berman in The Washington Post, and Timothy Mclaughlin at Reuters, who notes that today’s execution “will be the state’s first … in more than three years after a lengthy legal dispute over the choice of lethal injection drugs.”

Briefly:

  • At FiveThirtyEight, Oliver Roeder reports that according to the latest Martin-Quinn scores, which “aim to pinpoint justices’ ideologies on a left-right political spectrum using statistical techniques based on the justices’ votes,” and despite the “small sample size,” Justice Neil Gorsuch “is lining up with the court’s conservative bloc and is beginning to resemble [a] ‘Scalia clone.’”

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No stay for Ohio executions

By on Jul 26, 2017 at 5:26 am

Over a dissent from Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg, the Supreme Court last night declined to block the executions of three Ohio men. One of the inmates, Ronald Phillips, is scheduled to be put to death today for the 1993 rape and murder of his girlfriend’s daughter.

Phillips and the other two inmates, Gary Otte and Raymond Tibbetts, had challenged the three-drug protocol that the state plans to use to carry out their executions, arguing that it violates the Eighth Amendment’s ban on cruel and unusual punishment. Phillips’ execution would be the first in Ohio since 2014, when inmate Dennis McGuire was executed using a different combination of drugs. Eyewitnesses said that McGuire appeared to be gasping for air and sometimes choking for roughly half of the 24 minutes it took him to die. Continue reading »

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Kenneth Anderson is a professor of law at Washington College of Law, American University.

A striking feature of Kiobel II, the Supreme Court’s last excursion into the Alien Tort Statute prior to the current Jesner v. Arab Bank, PLC case, is how much Chief Justice John Roberts’ majority opinion and Justice Stephen Breyer’s concurrence (substantially a dissent) share in the way of two key background assumptions, one about politics and the other about law. These two assumptions together raise a puzzle as to why the court accepted Jesner and its limited question of whether the ATS permits suits against a corporate defendant.

The background political assumption in Kiobel II is that potentially deep, long-term changes are underway in the global political environment – indeed, in the post-WWII global political order – and the place of the United States within it. It’s a perception held to some degree, by my reckoning, by every one of the justices (with the possible exception of Justice Anthony Kennedy). It’s the perception of a global political environment characterized increasingly by jostling, prickly, competitive sovereigns jealous of their sovereign prerogatives – rising or resurgent great powers challenging the United States and parts of the global order it has championed and for which it has served, in effect, as guarantor over many decades.

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