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March 05, 2012


Melvin Hagerman

Seems to me that the Alien Tort Statute is allowing what in the U.S. Is "forum-shopping"; here, Nigerians are suing a Dutch company, for actions in a United States court. We have seen this here where persons in area "A" sue a company(s) or person(s) for actions in area "B", but the court is in friendly (usually to plaintiffs) court in area "C", hundreds of miles away. That trend has seemed to be slowing over the last few years and it might--MIGHT--be time to see the same thing in cases involving the ATS specifically.

John Minderhout

If the Court holds that the ATS does not apply to violations of international law outside the U.S., then they will have to abrogate Filartiga v. Pena-Irala (2d Cir. 1980), but Sosa v. Alvarez-Machain (2004) will still stand.

It won't matter much because all the big cases involve activities in developing countries, where a multi-national extracting firm hires the national military to provide security for their operations and bad things happen to the local, often indigenous, population. Rape, torture, arbitrary arrest, and extra-judicial killing are not as likely to occur within the borders of the U.S.

Oral arguments for Kiobel would probably have been different if the defendant/respondent had been a U.S. company. Then an argument for the defendant would have been that a holding against them would put U.S. companies at a competitive disadvantage by holding them to a higher standard than their foreign competitors. Economic concerns were voiced in the briefs for Kiobel, especially the 15 or so briefs submitted by various groups of corporations. They were answered critically by a brief by the Nobel laureate economist Joseph Stiglitz, who adduced arguments by Judge Posner in a Seventh Circuit decision (Flomo v. Goodyear), which affirmed dismissal of the case on other grounds.

By reframing the Kiobel case as the Court is doing, it will not have adduce prudential economic concerns in holding against the plaintiff/petitioners.


This new issue can serve as a fulcrum upon which to move the Court a bit closer to ruling against corporations.

As the article notes, the ATS would be grossly undermined after 30 years of accepted reign, leaving in doubt the idea that the US can exercise sovereign power where there is lawlessness (such as the high seas in the Barbary Pirates era, or dictatorships or anarchy that allow torture or genocide).

Reaffirming the validity of the ATS' underlying concept would remove the distraction evident last week, when Royal Dutch's lawyers could point at, or hint at, other unfair factors in the case than merely treating corporations like people.

Without that distraction, Royal Dutch will rise or fall based solely on establishing that corporations are different ... not so easy to do post-Citizens United, and not necessarily what corporations usually want.

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