Clinic files amicus curiae brief with U.S. Supreme Court on behalf of legal historians and scholars

The Supreme CourtIn December, Harvard Law School’s International Human Rights Clinic submitted an amicus curiae brief (PDF) to the U.S. Supreme Court in support of petitioners in a major Alien Tort Statute (“ATS”) case, Kiobel v. Royal Dutch Petroleum Co. The brief in Kiobel v. Royal Dutch Petroleum Co. argues that corporations can be held liable for violations of the law of nations under the ATS.

In a September 2010 ruling in Kiobel v. Royal Dutch Petroleum Co., the Second Circuit became the first and only appellate court to reject the proposition that corporations may be held liable for torts in violation of international law under the ATS. Subsequent decisions by the D.C. Circuit in Doe v. Exxon and the Seventh Circuit in Flomo v. Firestone explicitly rejected the Second Circuit’s reasoning. In October 2010, counsel for the plaintiffs filed a petition for rehearing. The Clinic submitted an amicus curiae brief in support of the petition on behalf of professors of legal history.

The brief argues that the history and purpose of the ATS support what the text explicitly provides: that jurisdiction extends to all causes in which an alien sues for a tort in violation of the law of nations, including cases against corporate defendants. The plaintiffs filed a second petition for rehearing in February 2011 after the first petition for rehearing was denied. Following the denial of the second petition for rehearing, the plaintiffs filed petition for certiorari to the U.S. Supreme Court in June 2011. The Clinic filed an amicus brief on behalf of professors of legal history in support of that petition.

Nine eminent legal historians and scholars 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 ’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 ’12, and Russell Kornblith ’12, served as student leaders on the team that assisting with drafting. Clinical students Yonina Alexander ’12, Catherine Fischl ’12, and Daniel Saver ’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 ’12, Sam Birnbaum ’14, Tess Borden ’14, Nikolas Bowie ’14, Carly Cohen ’13, Elizabeth Floyd ’14, Josh Frieman ’13, Meghan Heesch ’12, Julian Hill ’14, Clara Long ‘12, Meg McDermott ’13, Julien Savoye, LLM ’12, and Sarah Wheaton ’14.

“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.