Tuesday, May 1, 2018
Last week's case of Jesner v. Arab Bank raised ongoing concerns about the protected status the United States legal system accords to corporations. In Jesner, the Court found that foreign corporations are not subject to suit under the Alien Torts Statute, despite the fact that the Defendant bank in question had a New York branch that was found to have aided terrorist acts under the Anti-Terrorism Statute. Those claims were identical to those raised under the Alien Tort Act raised by the Plaintiff. Any distinction between government security interests and individual tort claims based upon the same facts and damages is insufficient to justify denying a remedy to individuals harmed by those acts.
It appears that corporations in the U.S. have secured the benefits of "personhood" while managing to avoid many of the responsibilities and liabilities of and to individual persons. Citizens United protected corporate speech finding election promotions a form of free speech. Viewing corporations as associations of individuals, and finding money as fundamental to promoting free speech, restrictions on corporate funding amounted to an impermissible restriction on free speech. "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."
In Citizens United great emphasis was placed on the organization of individuals choosing an entity format, the implication being that those individuals should not be forced to relinquish individual freedoms due to a chosen organizational structure. But in Jesner, corporate entities are not assessed to be organizations of individuals when it comes to recognizing the liabilities that individuals would face if actions complained of were unprotected by corporate shells.
When the Court chooses to emphasize individual versus corporate "personhood" is not straightforward. This trend toward shielding corporations from liability while restricting individual rights to sue corporate "persons" is disturbing.
Keeping an eye on upcoming cases on the rights of individuals versus business entities will clarify how much corporate shielding the court is willing to do while eliminating some remedies for individual human rights violations.
[Ed.'s Note: This is the third entry in our series on the Supreme Court's recent decision in Jesner v. Arab Bank. The earlier entries, by Jena Martin and Beth Stephens, are available here and here. The fourth entry by Christopher Whytock, on post-Jesner moves, is here.]