Sunday, April 29, 2018

Five Things I Don't Like about the Jesner Opinion

by Beth Stephens, Distinguished Professor of Law, Rutgers University, guest contributor

There are so many things I dislike about the Jesner case and last week's Supreme Court decision, I hardly know where to begin.

1.  As someone who has litigated claims under the Alien Tort Statute for almost 30 years, I should start by noting that the little that remains of the statute is hanging by an ever-weaker thread. Two or three justices would either overturn Sosa or gut its holding by rejecting the modern application of the ATS (Justices Thomas, Gorsuch and probably Alito: no surprises there). But Justice Kennedy’s opinion for the five-judge majority, joined in full by Chief Justice Roberts, goes almost as far: Kennedy suggests that the ATS might properly be limited to cases included within the reach of the Torture Victim Protection Act, stating that the TVPA is a model for how to interpret the ATS and that “absent a compelling justification, courts should not deviate from that model” (at 20). He also says that the TVPA’s exclusion of corporate defendants is “all but dispositive” of the question as to whether the ATS excludes them as well (at 20). Kennedy ignores the fact that Congress did not repeal the ATS when it enacted the TVPA and—for those who consider legislative history relevant—stated explicitly that the ATS has “other important uses and should not be replaced.” Kennedy also notes that Sosa itself might preclude recognition of “any new causes of action under the ATS” (at 19)—presumably referring to any claims beyond the historic trio of piracy, violations of the rights of diplomats, and violations of safe conducts. He ignores clear statements in Sosa that other claims are permitted under the ATS. These points in the majority opinion will doubtless be cited in support of an argument that lower courts should decline to hear any modern ATS claims at all.

2.  I might take some consolation from the fact that the opinion is limited to foreign corporate defendants and does not decide whether U.S. corporations can be sued under the ATS. But Kennedy says there is a strong argument that the ATS does not apply to any corporate defendants (at 13). It seems quite likely that lower courts may read the opinion as suggesting that claims under international law should not be extended to any corporations, particularly given that, after this decision, corporations will surely argue that a contrary holding would put U.S. corporations at a disadvantage as compared to foreign corporations.

3.  The majority opinion’s treatment of corporations is galling. Let’s pause a moment to pity those artificial entities, helpless as they are in the face of misconduct by humans—how shocking to hold them responsible for what Kennedy labels “human rights crimes committed by their human agents” (at 11). Kennedy repeatedly uses a similar formulation, as if to imply that corporations are being unfairly saddled with responsibility for the acts of the hapless humans they employ. No, corporations do too much good in the world, particularly by investing in developing economies (at 24, 28), to be hamstrung by the liabilities incurred by their human employees. The Court rejects as outside its competence any recognition that corporations are legal entities that should be held liable for all violations of law. This is a far cry from Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), when the Court recognized the personhood of corporations under a Constitution that was drafted and ratified at a time when the modern limited liability corporation didn’t exist. Oops. That was a case about empowering corporations. This one is about freeing them from constraints. Different facts, different results.

4.  The opinion is a dismal reminder of all of the ways in which the Supreme Court has cut back on civil litigation in general, and particularly against corporations, including limiting personal jurisdiction over corporations, imposing a heightened presumption against extraterritoriality, and tightening pleading standards. Even before Jesner, very few ATS claims had survived.

5.  And finally, there are the many ways in which I see Jesner as a product of a climate in which anti-Palestinian bias and anti-terrorism hysteria has warped the law and the fight for accountability. I helped draft an amicus brief in this case filed by the Center for Constitutional Rights in support of neither party, out of concern that the case reflects the special treatment given to claims of terrorism as compared to other human rights violations and could exacerbate the devastating impact that the “war on terrorism” has had on human rights around the world. I feel for all survivors of human rights violations and fight for accountability and redress for all. But I think it important to recognize the danger of privileging claims that assert human rights violations by groups our government has chosen to label “terrorists.”

[Eds. Note:  This is the second in a series of commentary on the Supreme Court's ruling in Jesner v. Arab Bank.  The first commentary, by Professor Jena Martin, is here.]

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