Response: A federal forum and Citizens United

The following response in our symposium on Kiobel v. Royal Dutch Petroleum comes from Beth Stephens, Professor of Law, Rutgers-Camden School of Law. As a Cooperating Attorney with the Center for Constitutional Rights and a member of the Board of Directors of the Center for Justice and Accountability, Professor Stephens has worked on the plaintiffs’ side of Kiobel and related cases. [Lyle published an introduction to the issues in the case at the start of the symposium.]

This short reply addresses two distinct issues. First, I respond to the repeated claim that the Alien Tort Statute (“ATS”) should be interpreted to grant jurisdiction only over international law violations committed within the United States or by U.S. citizens, because those are the violations for which the U.S. government could have been held responsible under international law. That view ignores evidence that the purpose of the ATS was to ensure that aliens seeking damages for violations of the law of nations – including piracy – would have the option of filing all such claims in federal, not state, court.

Second, a robust understanding of corporate personhood, so evident in Supreme Court decisions such as Citizens United, applies with equal force to ATS claims against corporations. That is, the same corporations that are persons entitled to constitutional protection, are also persons responsible for providing remedies when their agents violate international law.

I.

Commentators who seek to restrict the scope of the ATS insist that its central purpose was to address violations for which the U.S. government could be held responsible, specifically violations committed within the United States or by U.S. citizens. Michael Ramsey goes so far as to say that “there is wide scholarly consensus that [the statute’s] purpose was to provide a remedy for international wrongs for which the United States would be held responsible by foreign nations.” Such a consensus does not exist, however, and I beg to differ.

The focus on violations for which the United States could be held responsible would cut piracy — a paradigmatic ATS violation — out of the statute. Moreover, the narrow focus ignores what is most clear about the statute: the ATS, in plain words, offers aliens the option of a federal forum for all claims of international law violations. Remember, those claims could have been heard in state courts as transitory torts, whether or not the events took place in the United States and whether or not the defendant was a U.S. citizen. One major concern at the time was that the states would mishandle aliens’ claims, causing foreign affairs friction that the federal government would have to resolve.

Although the specific incidents discussed by the framers involved international law violations committed by U.S. citizens or acts that occurred in the United States, the drafters of the ATS quite clearly chose not to insert either of those restrictions into the language of the statute, even while they carefully limited the class of potential plaintiffs to aliens.  Elsewhere in the First Judiciary Act, they inserted both territorial limitations and limits on categories of defendants into jurisdictional provisions. Another clause of the same section of the act, for example, grants jurisdiction over “all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas.” Such limiting language does not appear in the ATS. The most likely explanation is that the drafters intentionally chose broad language for the ATS in order to ensure that the federal courts could hear “all causes” (in the language of the original act) asserted by an alien for a violation of the law of nations. The potential for foreign policy controversies was present in all such cases.

The same issue of federal, rather than state, jurisdiction remains relevant today. If the Supreme Court finds that the ATS does not afford jurisdiction over claims arising in foreign states, the litigation will not cease. Instead, claims based on the same events will be filed in state courts, litigated as transitory tort claims, as they would have been in 1789. The cases won’t go away, but they will increasingly be litigated before state court judges applying inconsistent definitions of the substantive torts and varying doctrines of forum non conveniens and choice of law. The potential for foreign policy controversy will increase astronomically, exactly the result that the first Congress sought to avoid when it enacted the ATS.

II.

Very few of the symposium postings addressed the initial Supreme Court question: whether the ATS applies to claims against corporate defendants. If a private individual – a natural person – can be sued for a specific human rights violation under the ATS, can a corporation be sued if its managers, employees, or other agents engage in the same conduct? As I explain at greater length in a forthcoming article, I believe that the issue should be understood from a perspective that has not been raised in the Kiobel litigation: through the lens of Citizens United.

Since the Second Circuit decided Kiobel, it has been clear that the comparison to Citizens United makes for a good sound bite: how is it possible that corporations have a constitutionally protected right to spend money to influence an election, but cannot be held liable when their managers, employees, or other agents commit egregious human rights violations such as genocide? If international law and domestic law were independent legal systems, the comparison might be irrelevant. But international law and domestic law are not completely independent. To the contrary, they are intertwined in significant ways because international law necessarily relies on domestic law to fill gaps and provide essential rules on issues that it does not address.

One of the issues for which international law must rely on domestic law is the scope of the rights and responsibilities of the legal entities created by domestic law, because international law does not define partnerships, corporations, limited liability companies, or any of the business models used around the world. As the International Court of Justice stated in Barcelona Traction, “whenever legal issues arise concerning the rights of States with regard to the treatment of companies and shareholders, as to which rights international law has not established its own rules, it has to refer to the relevant rules of municipal law.” If the court were to ignore the relevant domestic law, it said, “it would lose touch with reality, for there are no corresponding institutions of international law to which the court could resort.” When it turns to domestic law to explain the legal ramifications of these entities, international law finds an important point of agreement: all of the world’s major legal systems share the U.S. understanding that corporations can be held legally responsible when they inflict injuries.

In the United States, we have a particularly robust view of the corporation as both bearing rights and as responsible for its wrongs. This domestic understanding of corporate personhood, which was so passionately defended by the Supreme Court majority in Citizens United, applies to corporate defendants sued for torts in violation of the law of nations, just as it does when corporations seek the protection of the First Amendment. Corporations, the Court held, are persons who play an important role in our society and are entitled to constitutional protections when they enter the public arena. But personhood carries responsibilities as well as rights, and corporations are also persons responsible for providing remedies when their agents violate international law and cause injury to others.