Argument recap: Downhill, from the start
on Feb 28, 2012 at 3:05 pm
When Justice Anthony M. Kennedy, in the opening minute of a Supreme Court argument, tells a lawyer that his entire case is in jeopardy, it is extremely difficult for even an experienced counsel to recover. And, though he tried, Venice, Calif., attorney Paul L. Hoffman did not appear on Tuesday to have resuscitated his argument that foreign corporations should be held to account in U.S. courts for human rights abuses in foreign lands. At least a majority of the Justices looked notably unconvinced.
Hoffman, of course, had a core argument of considerable merit, in Kiobel v. Royal Dutch Petroleum (d0cket 10-1491). But it required the Court to draw a distinction that most of the Justices seemed unwilling to draw. He readily accepted that international law is where to look to define the kinds of atrocities that violate the norms of a civilized world, but he was not ready to accept that international law also defined who could be sued for such wrongdoing; for that, he wanted domestic law to govern.
“The principal issue before this Court,” Hoffman began, “is the narrow issue of whether a corporation can ever be held liable for violating fundamental human rights norms under the Alien Tort Statute.” He had barely uttered a second sentence, when Kennedy said that, for himself, “the case turns in large part” on an assertion by the global oil companies in the case that “international law does not recognize corporate responsibility for the alleged offenses here.”
Another big oil company, Chevron, had asserted in a brief, Kennedy added, that “no other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.” Kennedy said he could find no answers to that in the briefs, and then added: “It involves your whole argument, of course.”
Although Kennedy referred to both of those thoughts as if they were a single “proposition,” they actually involved two quite different notions: first, that international law in defining who can be sued for human rights abuses leaves out corporations, and, second, that other countries do not permit their courts to reach such abuses beyond their territories. The first directly refuted the core of Hoffman’s claim about domestic law prevailing on who might be held liable, but the second only served to show that, perhaps, the United States’ Alien Tort Statute was unique, without proving to whom Congress had meant it to apply.
Even so, the Kennedy thrust was devastating for the concept that corporations may be sued under the ATS. It seemed to clear the way for other Justices to raise grave doubts about whether Congress really intended to go against the weight of world opinion, and about whether even the Constitution might forbid a grant of authority to U.S. courts that would have global reach when no part of a lawsuit had any direct connection to the U.S.
After that, Hoffman was never able to make much of a case for the idea that domestic law should control the identification of who could be sued under ATS. And his cause surely suffered, perhaps grievously, from a polished, deeply researched and highly confident argument against him by New York lawyer (and former Harvard and Stanford constitutional expert) Kathleen M. Sullivan, who gave a stellar performance even by the high standards that have come to be expected of her.
An underlying theme in the case, and this, too, went against Hoffman, is that the current Court is deeply conflicted over whether the interpretation of U.S. law should be influenced in any way by the legal concepts that are developed in other countries. But both Justices who favor taking some guidance from abroad, like Justice Kennedy, and those who regard such guidance as offensively alien, like Justice Antonin Scalia, used the perceived international consensus against Hoffman.
Although the counsel for the Nigerian plaintiffs in the case, suing foreign-based oil companies, repeatedly insisted that the kinds of crimes against humanity being alleged were focused upon their dastardly character, and not whether they were committed by an individual or a corporation, that separation never caught on with most of the Justices. They seemed to see international law as controlling across the spectrum — identifying the violations of international law, and limiting remedies to those against individual perpetrators.
But that perception was reinforced by Kennedy’s second point: the ATS seemed to give U.S. courts a sweeping authority to reach globally that no other country would allow its courts to have. For example, Justice Samuel A. Alito, Jr., commented: “I think the question is whether there’s any other country in the world where these plaintiffs could have brought these claims against the respondents.” Hoffman could only answer that their claims could be brought in countries where domestic law does impose liability on corporations — but that was not what Alito and others were talking about: they were focused on an issue that is not supposed to be at stake in the Kiobel case at this stage: did Congress really intend ATS to embrace suits by aliens against aliens for overseas acts.
Alito also pointed to Hoffman’s description in the brief of the specifics of this lawsuit, and then added: “What business does a case like that have in the courts of the United States?…There’s no connection to the United States whatsoever.” Such a lawsuit, the Justice remarked, only creates international tension.” (Later, Alito would pose a question of whether the Constitution conferred any such authority on the U.S. courts.)
Chief Justice John G. Roberts, Jr., also commented on that point, saying: “If there is no other country where this suit could have been brought, regardless of what American domestic law provides, isn’t it a legitimate concern that allowing the suit itself contravenes international law?”
Hoffman tried, unsuccessfully, to head off questions along that line by noting that the extraterritorial scope of ATS had not been briefed by the parties, and should not be confronted until it had been fully briefed and argued.
The U.S. government has come to Hoffman’s aid in the case, arguing that corporations should not be categorically immunized from lawsuits under ATS. But Deputy Solicitor General Edwin S. Kneedler kept his focus, as Hoffman had tried to do, on the claim that domestic common law would fill in the blank in ATS over who could be sued for human rights violations. Kneedler added, though, that international law does not independently bar corporate liability for a foreign company, in the same way that international law immunizes a foreign government from liability for its official misdeeds.
And, before Kneedler finished, Justice Kennedy had chastised him for making a sweeping argument. Kennedy said: “Suppose an American corporation commits human trafficking with U.S. citizens in the United States. Under your view, the U.S. corporation could be sued in any country in the world, and it would have no international consequences. We don’t look to the international consequences at all.”
When attorney Sullivan rose to make the oil companies’ side of the argument, she already seemed to be operating at an advantage, given how the argument had proceeded up to that point. But she proceeded as if the issue had to be won all over again, and moved energetically — conceding nothing along the way — to make international law the whole of the case against the Nigerians’ lawsuit. With apparently full command of the modern history of world litigation, human rights conventions and treaties, and international war crimes tribunals, Sullivan sought to demolish every hint that the world community recognized corporate liability for the wrongdoing perpetrated by individuals. Corporate officers, of course, could be held liable, but that, she argued, was wholly different from liability for the corporation itself.
When the Court turned from the Kiobel case and the Alien Tort Statute to a parallel question of liability for political organizations and entities under a different U.S. human rights law, the Torture Victim Protection Act, the entire hour was consumed with Justices and lawyers intensely focused upon how many meanings could be seen in the single word “individual.” (The second case was Mohamad, et al., v. Palestinian Authority, et al., 11-88.)
The Justices were far more engaged with Stanford law professor Jeffrey Fisher, arguing that “individuals” under the torture act clearly had a “secondary meaning” that could include organizations, not just human beings. Fisher did perhaps as much as could be done with that argument, but it was not obvious that he had persuaded a deeply skeptical bench. The Court did not similarly press the other two counsel arguing against organizational liability under that act, Washington attorney Laura G. Ferguson and Justice Department lawyer Curtis E. Gannon, siding with the argument that the Palestinian Authority and the Palestine Liberation Organization were not subject to such lawsuits.
(Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represents the petitioners in the second case. The author of this post, however, operates independently of the law practice.)