Today: Candy and the Clinical Forum!

Posted by Cara Solomon

We’ve put away the chips and salsa from yesterday’s Open House and we’re moving on to…CANDY for tomorrow’s Clinical Forum!

Please join us for a delicious and non-nutritious assortment of treats from 6:00-8:00 pm in Milstein East BC. This is your chance to:

- Chat with our clinicians about their projects and seminars.

- Grill our students about what it’s like to be a member of the Clinic.

- Learn about the dozens of other clinical programs at HLS , including Harvard Immigration and Refugee Clinic, our neighbor in the clinical wing and, more importantly, our friend!

Formal announcement below. Hope to see you soon.

Kiobel Update: Supreme Court Orders Re-argument and Supplemental Briefing on Extraterritoriality

By Tyler Giannini and Susan Farbstein

The Supreme Court will not rule this term on whether corporations can be held liable for human rights violations under the Alien Tort Statute (ATS).  Yesterday, in an unusual move, the Court instead decided that it will re-hear arguments in Kiobel v. Royal Dutch Petroleum Co. and requested additional briefing on the question of whether ATS cases can be brought in U.S. courts for abuses committed abroad.

The order for additional briefing (to be filed in May and June) and re-argument (likely to be held in October or November) means the case could now have broader implications.  If decided on the grounds of extraterritoriality, the outcome in Kiobel could affect all ATS cases, not only those against corporate defendants.

For more information on this latest development, see coverage from The New York Times, AP, Bloomberg and The Huffington Post.

Post-Kiobel Perspectives

Posted by Cara Solomon

After a months-long hurricane of hard work,  the clinical team settled  into their seats at the U.S. Supreme Court yesterday and heard oral argument in Kiobel.  It was, by all accounts, a long and exhilirating day.  Then Tyler and Susan capped it all off by writing a piece for The New York Times’ Room for Debate.

For those interested in reading yesterday’s transcript, you can find it here. And a blog Susan and Tyler wrote for the American Constitution Society previewing it here.

There are plenty of post-Kiobel perspectives out there right now; we’ll do our best over the next few days to post some of the more substantive ones here.

Here’s a roundtable discussion at Georgetown University today featuring Paul Hoffman, who represents the petitioners.  And here’s an editorial that ran in the L.A. Times.

Update from the Steps of the U.S. Supreme Court

Posted by Cara Solomon

Just got word from Daniel Saver, JD ’12: everyone on the clinical team made it into the U.S. Supreme Court for oral argument on Kiobel.  Given all the buzz around this case, there were real questions as to whether that would happen. Susan, Tyler, and Marissa Vahlsing, JD ’11, already had tickets.  But it took several hours of waiting for Daniel, Yonina Alexander, JD ’12, Poppy Alexander, JD ’12, and Russell Kornblith, JD ’12, to get theirs.

Poppy Alexander, Russell Kornblith, Yonina Alexander, and Meghan Morris wait in line outside the U.S. Supreme Court, hoping to get tickets to hear oral arguments in Kiobel.

According to an email from Daniel, the group settled into line last night around 11:30pm.  Minutes later, by chance, they ran into Meghan Morris, JD ’08, whom Daniel described in the email—with exclamation points, of course—as an HRP legend.  Nobody slept last night, he said—they were huddled together for warmth.

Stay tuned for more Kiobel updates.

Kiobel Oral Argument Today

By Tyler Giannini and Susan Farbstein

We’re in Washington DC, in front of the U.S. Supreme Court, with our team of clinical students.  The Kiobel oral argument will take place this morning.  The blogs and op-eds have been busy over the last week in anticipation of the argument.  If you want to catch up, some links are below.  We’ll be back with reactions and commentary on the argument, so watch this space.

Feb. 26, New York Times op-ed by Peter Weiss

Feb. 26, Los Angeles Times op-ed by Ka Hsaw Wa

Feb. 26, Los Angeles Times article

Feb. 26, Associated Press article

Feb. 25, Voice of America article

Feb. 24, Reuters article

Feb. 24, Marco Simons’ appearance on Democracy Now!

Feb. 22, Alliance for Justice post by Tyler Giannini and Susan Farbstein

Feb. 20, National Law Journal op-ed by Michael Bazyler and Jennifer Green

No Corporate Exemption: Supreme Court to Hear Major Corporate Human Rights Case

Post by Tyler Giannini and Susan Farbstein

NOTE: The post below was originally published on Justice Watch, a project of the Alliance for Justice. For more on the Kiobel case, including the most recent amicus briefs submitted to the U.S. Supreme Court, please click here.

NO CORPORATE EXEMPTION: SUPREME COURT TO HEAR MAJOR CORPORATE HUMAN RIGHTS CASE

February 22, 2012

Next Tuesday, the Supreme Court will hear oral arguments in Kiobel v. Royal Dutch Petroleum Co.  Kiobel is the most important human rights case the Court will consider this term, raising fundamental questions about corporate accountability.  The Plaintiffs allege that Royal Dutch/Shell was complicit in the Nigerian government’s torture and killing of their relatives in the 1990s.  The Supreme Court is reviewing a lower court decision that created a corporate exemption from liability under the Alien Tort Statute (“ATS”), concluding that corporations cannot be sued even when they facilitate genocide, crimes against humanity, or war crimes.

The ATS, a 1789 law passed by the First Congress, permits non-U.S. citizens to hold perpetrators accountable in U.S. courts for violations of international law.  In the fall of 2010, however, the Second Circuit Court of Appeals in New York created the corporate exemption now under review.  Since the Second Circuit’s decision, every other appellate court to consider the issue has rejected Kiobel’s approach.  Recognizing the importance of this question and the split among the lower courts, the Supreme Court agreed to hear the case.

Yesterday, the Plaintiffs filed their final brief before the oral argument.  They noted the profound ramifications of the lower court’s holding:

The implications of the decision below are shocking.  When I.G. Farben exploited slave labor at Auschwitz and supplied the Zyklon B poison to facilitate mass murder in its death chambers, that corporation violated international law.  [Defendants’] construction of the ATS means that even a modern-day I.G. Farben could not be sued under the ATS.  Nor could a “Pirates, Inc.” engaged in contemporary piracy, or an entity incorporated to engage in slavery.

Given the significance of blanket immunity for corporate human rights abuse, it is no surprise that the U.S. government has weighed in with an amicus curiae brief in support of the Plaintiffs.  The U.S. government noted that corporations are certainly capable of violating international law, and found “no good reason to conclude that the First Congress would have wanted the suit to proceed only against the potentially judgment-proof individual actor, and to bar recovery against the company on whose behalf he was acting.”  The government’s brief further observed that “[c]orporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our ‘legal culture.’”

For fifteen years before Kiobel, the statute enabled survivors of corporate human rights abuse to pursue accountability here, when it was otherwise unavailable.  For example, Plaintiffs sought redress for corporate complicity in forced labor in Burma, apartheid in South Africa, and extrajudicial killings in Nigeria.  While only cases against companies involved in such egregious human rights violations moved forward, no court contemplated a corporate shield from liability.  With Kiobel, the Supreme Court has an opportunity to reaffirm the U.S. commitment to provide justice to survivors of egregious human rights abuse.  Relief from suffering should not depend on whether an individual or a corporation is responsible for the violation.

Clinic Files Amicus Curiae Brief with U.S. Supreme Court on Behalf of Legal Historians

PRESS RELEASE

Brief in Kiobel v. Royal Dutch Petroleum Co. argues that corporations can be held liable for violations of the law of nations under the Alien Tort Statute.

December 21, 2011, Cambridge, MA—Harvard Law School’s International Human Rights Clinic has submitted an amicus curiae brief to the U.S. Supreme Court in support of petitioners in a major Alien Tort Statute (“ATS”) case, Kiobel v. Royal Dutch Petroleum Co.  Nine eminent legal historians joined the brief as amici: Barbara Aronstein Black, William R. Casto, Martin S. Flaherty, Robert W. Gordon, Nasser Hussain, Stanley N. Katz, Michael Lobban, John V. Orth, and Anne-Marie Slaughter.

Associate Clinical Director Susan Farbstein, JD ’04, and Clinical Director Tyler Giannini served as counsel for the amici, who argue that Congress enacted the statute so that plaintiffs would have a meaningful civil remedy in federal court for violations of international law.  The brief outlines how creating a special exemption for corporate defendants, as the Court of Appeals did in Kiobel, contradicts the original purpose of the ATS as well as its plain text.

“Excluding corporations from liability for the most egregious violations of international law ignores the Founders’ purpose in enacting the ATS,” said Giannini.  “Long before the ATS was passed, courts were holding entities such as the British East India Company accountable for the wrongs they committed.”

Poppy Alexander, JD ’12, and Russell Kornblith, JD ’12, served as student leaders on the team that assisting with drafting.  Clinical students Yonina Alexander, JD ’12, Catherine Fischl, JD ’12, and Daniel Saver, JD ’12, also contributed to the brief.

“The project presented a unique opportunity to work closely with a talented team of students and professors, who were all dedicated and focused on the same end goal,” Poppy Alexander said. Kornblith added, “I feel incredibly privileged to have been a part of this team whose work spanned three countries and four centuries.”

Since the U.S. Supreme Court granted certiorari in the case, more than a dozen other HLS students and alumni around the world have contributed to an international research effort supporting for the brief: Bradford Adams, JD ’12, Sam Birnbaum, JD ’14, Tess Borden, JD ’14, Nikolas Bowie, JD ’14, Carly Cohen, JD ’13, Elizabeth Floyd, JD ’14, Josh Frieman, JD ’13, Meghan Heesch, JD ’12, Julian Hill, JD ’14, Clara Long, JD ‘12, Meg McDermott, JD ’13, Julien Savoye, LLM ’12, and Sarah Wheaton, JD ’14.  In addition, Deval Desai, LLM ’09, supervised a team of students at the School of Oriental and African Studies who contributed research assistance: Mary Johnson, LLM ’12, Catherine Lancaster, MA ’12, Allison Lindner, LLM ’11, Whitney Purdum, MA ’12, Luke Smitham, MA ’12, Anjana Varma, MA ’12, and Jessica Whelligan, LLM ’12.

“Kiobel should be reversed because it departs from more than a decade of jurisprudence holding corporations liable under the statute,” said Farbstein.  “If left to stand, the decision would deprive survivors of corporate misconduct of a valuable tool for seeking justice, contrary to the intent of the Founders.”

In Kiobel, Nigerian plaintiffs filed claims for extrajudicial killing, torture, crimes against humanity, and prolonged arbitrary arrest and detention. The plaintiffs allege that Royal Dutch Petroleum collaborated with the Nigerian government to commit these violations in order to suppress their lawful protests against oil exploration.  In a September 2010, ruling, the Second Circuit became the first appellate court to reject the proposition that corporations may be held liable under the ATS for torts in violation of international law.

Kornblith noted that, “Courts have held corporations responsible for their actions for centuries, and the lessons of the past cannot become the mistakes of tomorrow.” Alexander continued, “We cannot forget that in spite of the work we did, there are a lot of people with a lot more riding on this. It has been a privilege to work for justice for them.”

Oral argument before the Supreme Court has been scheduled for February 28, 2012, and a decision is expected by June 2012.

Contacts:

• Susan Farbstein, Associate Clinical Director, Human Rights Program, Harvard Law School: 617-835-8257, sfarbstein@law.harvard.edu.
• Tyler Giannini, Clinical Director, Human Rights Program, Harvard Law School: 617-495-9263, giannini@law.harvard.edu.
• Cara Solomon, Communications Coordinator, Human Rights Program, Harvard Law School: 617-495-9214, csolomon@law.harvard.edu

In Creating a Corporate Carve-Out, Kiobel Ignores History

Posted by Cara Solomon

For those of you following Kiobel news, Tyler and Susan have submitted their closing statement in PENNumbra’s online debate, arguing that the Second Circuit’s ruling ignores history in creating a corporate carve-out.  The U.S. Supreme Court is due to hear the Kiobel v. Royal Dutch Petroleum Co. case early next year, deciding for itself whether corporations can be held liable for violations of international law.

More on our previous work on Kiobel is available here and on the Alien Tort Statute here.  Also, here’s a sampling from the flood of recent media coverage: from Reuters, Businessweek, and The Atlantic.  On the blog front, check out pieces on the Opinio Juris blog and The Huffington Post.

Online Debate: “Will Kiobel Be Just An Aberration?”

Posted by Cara Solomon

Here’s the latest from Susan and Tyler on the Kiobel front: their opening statement in an online debate over at PENNumbra,  a publication of the University of Pennsylvania Law Review.

The debate poses the critical question, “Will Kiobel Be Just An Aberration?”

Next up is a response from Anthony Clark Arend, Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.  Then each side submits a closing statement.

Stay tuned!

What the Courts Did Over Our Summer Vacation: Three Days that Redefined the Corporate ATS Landscape

Posted by Susan Farbstein

It’s still 80 degrees and sunny in Cambridge, but I know summer is over because the students are back, roaming the halls and knocking on my office door.  Many are asking the same question: what happened in the corporate Alien Tort Statute (ATS) world over the summer?  The short answer is: a lot.  Here’s a quick summary to get folks up to speed.

The plaintiffs in Kiobel v. Royal Dutch Petroleum Co.  filed their petition for certiorari in early June, asking the Supreme Court to reverse the Second Circuit’s decision that corporations cannot be held liable under the ATS.  Amicus briefs from international human rights organizations, international law scholars, former ambassador David Scheffer, and professors of legal history—the last submitted by our own International Human Rights Clinic—supported the petition.

Then something interesting happened: in a matter of three days, two opinions were issued that transformed the Second Circuit’s Kiobel decision from defining the landscape to becoming an outlier.