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Justices Weigh Corporations' Liability For Human Rights Abuses Abroad

Publication Date: 
February 28, 2012
Source: 
Daily Journal
Author: 
Robert Iafolla

Professor Kathleen M. Sullivan and professor Jeffrey L. Fisher both appeared in the following Daily Journal article by Robert Iafolla on the two Supreme Court cases dealing with corporations and human rights violations committed abroad.

The U.S. Supreme Court appeared open Tuesday to dialing back corporations' liability for torture, genocide and other human rights violations committed abroad, although it's less clear just how far the justices would be willing to go.

In the first of the two cases argued, the justices considered whether corporations are immune to suits brought under a law allowing foreign plaintiffs to sue in federal court for breaking norms of international law. The question seemed to cleave the court into its two ideological camps, with the conservatives favoring immunity and the left-leaning justices opposing it. The outcome could rest in the hands of Justice Anthony M. Kennedy.

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Kathleen M. Sullivan, a partner at Quinn Emanuel Urquhart & Sullivan LLP representing the oil companies, said the justices could rule that courts lack jurisdiction over suits between foreign plaintiffs and defendants relating to overseas conduct. Although deciding on that "extraterritoriality" ground would get rid of the case, the court should hand down a "broader ruling" that categorically blocks corporate liability, Sullivan urged.

Justice Elena Kagan, the former dean of Harvard Law School, challenged Sullivan, the former dean of Stanford Law School, with a hypothetical.

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Sullivan said there would be no corporate liability because international law treats corporations differently than individuals. International human rights conventions and the United States' own Torture Victims Protection Act all use language saying that people are liable and not corporations, she added.

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At issue in the second case is whether corporations and other groups can be liable under the torture victim's law, which specifically says "individuals" can be held liable for torture or killings done under the color of law. The matter arises out of a lawsuit by a naturalized U.S. citizen against the Palestinian Authority and the Palestinian Liberation Organization alleging the torture and extra-judicial killing of his father.Mohamad v. Palestinian Authority, 11-88.

The plaintiff's attorney, Stanford Law School professor Jeffrey L. Fisher, argued that Congress used "individual" as a term of art to distinguish non-sovereign entities from state actors. He said lawmakers got the term from a concurring opinion by Circuit Judge Harry T. Edwards in a case about a PLO bombing. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984).

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Fisher tied the two cases together, saying that if the court finds that foreign plaintiffs can sue corporations for torture "it would indeed be absurd to imagine Congress stepping in and passing a statute saying if you're an American citizen, I'm sorry, you're out of luck."