Instant Analysis: Kiobel v. Royal Dutch Petroluem

February 28th, 2012

The transcript is up:


Right off the bat, AMK cut to the heart of the matter:

JUSTICE KENNEDY: But, counsel, for me, the case turns in large part on this: page 17 of the red brief. It says, “International law does not recognize corporate responsibility for the alleged offenses here.”
And the — one of the — the amicus brief for Chevron says, “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.”

And in reading through the briefs, I was trying to find the best authority you have to refute that proposition, or are you going to say that that proposition is irrelevant?

And—in a line sure to piss off Citizen-United-rabid liberals—AMK acknowledges for purposes of international law (but not the 1st Amendment?) that there is a difference between corporations and individuals:

JUSTICE KENNEDY: But in — in the area of international criminal law, which is just analogous, I recognize, there is a distinction made between individuals and corporations.

Alito, and the Chief asked whether this case could be brought in any other court:

CHIEF JUSTICE ROBERTS: If — 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?

JUSTICE ALITO: The first sentence in your brief and the statement of the case is really striking: “This case was filed by 12 Nigerian Plaintiffs who alleged that Respondents aided and abetted the human rights violations committed against them by the Abacha dictatorship in Nigeria between 1992 and 1995.” What does a case like that — what business does a case like that have in the courts of the United States?


JUSTICE ALITO: There’s no connection to the  United States whatsoever. The Alien Tort Statute was enacted, it seems to be — there seems to be a consensus, to prevent the United States — to prevent international tension, to -and — does this — and this kind of a lawsuit only creates international tension.

And a shout-out to Judge Kavanaugh! Holla!

JUSTICE ALITO: Well, what did — how did Judge Kavanaugh interpret that on the D.C. Circuit?

And Alito goes all originalist!

JUSTICE ALITO: Do you really that think the first Congress wanted victims of the French Revolution to be able to sue in — in the court — to sue French defendants in the courts of the United States?

United States in Support of Petitioner

Likewise, the Chief seized on the difference between who undertakes the misconduct:

CHIEF JUSTICE ROBERTS: But under international law, it is critically pertinent who’s -who’s undertaking the conduct that is alleged to violate international norms. If an individual private group seizes a ship, it’s piracy. If the navy does it, it’s not. Governmental torture violates international norms. Private conduct does not.
So, why doesn’t the — why isn’t the same pertinence — your argument seems to be that all you need to do is find an event, torture, piracy, whatever, and then it’s up to the domestic law whether or not particular entities can be sued.

SGB goes off on his own and talks about a United State Supreme Court of the World and Pirates Incorporated (Disney may make that movie by merging Pirates of the Caribbean and Monsters Inc!).

JUSTICE BREYER: So — so, why — why then — you want to answer in your brief — and this question, I find impossibly difficult, maybe highly fact-dependent. There is no United States Supreme Court of the World. There is no way of getting unified law on the points of whether when we interpret a common law Federal — a system of Federal common law to decide whether a corporation can be defendant — a defendant in a certain kind of case. Every other country could do the same. And there’s no way of resolving it. All right?

So, I find that a difficult question. I don’t know why that’s in this case. I would have thought the question in this case is, can a private actor be sued for certain violations of — of substantive criminal law? The answer’s “yes.” Okay? Genocide, for example.
And then the question is — a corporation is a private actor. And is there any reason why, just like any other private actor, a corporation couldn’t be sued for genocide? And there the answer is I don’t know, but I’ll find out when the other side argues. You see?
JUSTICE BREYER: So, I — I think this is unnecessarily complicated. They made a — a categorical rule. They said never sue a corporation. I seem to think possibly of counterexamples. Pirates, Incorporated.

MR. KNEEDLER: Right. [Pronounced, Riiiighhhhht]

And here, like, Breyer, totally, i mean, like sounds like, totally, like a Valley girl. Right?

JUSTICE BREYER: You know? I mean — so -so, why isn’t that — why are we going into — I mean, you have good reason for doing it, and I want to hear why.



Pirates, Inc. strikes back. I can definitely see Disney making this movie. Johnny Depp can play steven breyer, as a swashbuckling litigator, who leaps from ship to ship, bringing suit in any court that lets him in

JUSTICE BREYER: Yes, but that’s a different matter because you can have a principle that applies even though there isn’t a case. And the principle that here would apply is what I said, Pirates, Incorporated. Do you think in the 18th century if they’d brought Pirates, Incorporated, and we get all their gold, and Blackbeard gets up and he says, oh, it isn’t me; it’s the corporation — do you think that they would have
then said:
Oh, I see, it’s a corporation.
Go home.
MS. SULLIVAN: Justice Breyer, yes, the corporation would not be liable.

And, a knock-out-drag-down fight between two former law school deans–who both were on the SCOTUS short list–Kagan and Sullivan. Ding! Ding! Ding! Fight!

 JUSTICE KAGAN: But, Ms. Sullivan, I think that that’s mostly because all of these are written to prohibit certain acts, and they don’t talk about the actors. So, if I could, you know, draw an analogy, it’s as if somebody came and said, you know, this — this norm of international law does not apply to Norwegians. And you — well, there’s no case about Norwegians. And it doesn’t specifically say “Norwegians.” But, of course, it applies to Norwegians because it prevents everybody from committing a certain kind of act.

MS. SULLIVAN: But, Justice Kagan, international law does speak to who may be liable, which you correctly identified as a substantive question, not a question of enforcement. And international law holds corporations liable for some international law violations. Look to the convention on the suppression of the financing of terrorism, which speaks about legal entities, or the convention on bribery of public officials, which speaks about legal persons.

Round 2:

JUSTICE KAGAN: Miss Sullivan, take an example that has all the extraterritoriality aspects of this case taken away from it. Let’s assume that the French ambassador is assaulted or attacked in some way in the United States, and that that attack is by a corporate agent. Would we say that the corporation there cannot be sued under the Alien Tort Statute?
MS. SULLIVAN: Yes, Your Honor. You would say that because there is no assaulting ambassador norm that applies to corporations.
I just want to go back and -JUSTICE
KAGAN: Could you explain to me -we would have to sue the person individually?
MS. SULLIVAN: Exactly. Exactly.
JUSTICE KAGAN: What — so this goes back to Justice Breyer’s question. Where do you find that in international law? Where — where does it say, when the French ambassador is sued in the United States by a corporate agent, we can’t sue the corporation?
MS. SULLIVAN: The burden rests on the Petitioners to show that the norm is established by international law; not on us to show that corporate liability is any

Round 3 (and an audio clip that will likely find its way onto MSNBC):

JUSTICE KAGAN: Miss Sullivan that would be true against an individual as well. The ATS is just a unique statute. It’s unique against individuals, and it’s unique against corporations. That doesn’t answer the question that you’re here to address which is whether corporations are meaningfully different from individuals.
MS. SULLIVAN: They are meaningfully different from individuals under international law which is the crucial choice of law question that you need to answer here. The crucial question that is at the threshold is which law determines whether corporations are liable.

Round 4 is a draw:

JUSTICE KAGAN: The question of who has an obligation is a substantive question.
MS. SULLIVAN: Respectfully, Justice Kagan, we disagree. The question of who may be sued is fundamentally part of the question of whether there has been a tort committed in violation of the law of nations. It would read the verb “committed” out of the statute.
If you just said find a violation of the law of nations anywhere and then apply it to whoever you want.
JUSTICE KAGAN: To give you an example, the tort in violation of the law nations has been committed. It has been committed by the corporate agent. And the question then is, can one hold the corporation responsible for that tort. And that seems to be a question of enforcement, of remedy; not of substantive international law.
MS. SULLIVAN: Justice Kagan, we respectfully disagree. That is a question of substantive law. Think about a domestic analogy. Look to the restatement of conflicts. You would ask whether — you would not look to foreign law to determine a question of respondeat superior or contribution or indemnity. You would not look to foreign law to determine whether, in the words of the restatement, one person is liable for the tort of the other.

You would look to the law of the place of misconduct or the place of where the corporation is headquartered. Foreign law determines in this case whether you had could have civil remedies rather than criminal. We concede that the ATS allows a civil remedy where the world would impose only criminal liability.
That’s because civil liability versus criminal liability, that’s a matter of remedy. So would be the amount of damages. So would be the choice of compensatory or punitive damages. Those are matters of remedy for domestic law to decide.