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Argument Recap: Downhill, From The Start; Analysis

Publication Date: 
February 28, 2012
Lyle Denniston

Professor Kathleen M. Sullivan and professor Jeffrey L. Fisher are both mentioned in an article providing analysis on the two torture cases being heard by the Supreme Court, Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority. Lyle Denniston filed the following story in SCOTUSblog.

When Justice Anthony M. Kennedy, in the opening minute of a Supreme Court argument, tells a lawyer that his entire case is in jeopardy, it is extremely difficult for even an experienced counsel to recover. And, though he tried, Venice, Calif., attorney Paul L. Hoffman did not appear on Tuesday to have resuscitated his argument that foreign corporations should be held to account in U.S. courts for human rights abuses in foreign lands. At least a majority of the Justices looked notably unconvinced. Hoffman, of course, had a core argument of considerable merit, in Kiobel, et al., v. Royal Dutch Petroleum, et al. (d0cket 10-1491). But it required the Court to draw a distinction that most of the Justices seemed unwilling to draw. He readily accepted that international law is where to look to define the kinds of atrocities that violate the norms of a civilized world, but he was not ready to accept that international law also defined who could be sued for such wrongdoing; for that, he wanted domestic law to govern. ... After that, Hoffman was never able to make much of a case for the idea that domestic law should control the identification of who could be sued under ATS. And his cause surely suffered, perhaps grievously, from a polished, deeply researched and highly confident argument against him by New York lawyer (and former Harvard and Stanford constitutional expert) Kathleen M. Sullivan, who gave a stellar performance even by the high standards that have come to be expected of her. ... When attorney Sullivan rose to make the oil companies’ side of the argument, she already seemed to be operating at an advantage, given how the argument had proceeded up to that point. But she proceeded as if the issue had to be won all over again, and moved energetically — conceding nothing along the way — to make international law the whole of the case against the Nigerians’ lawsuit. With apparently full command of the modern history of world litigation, human rights conventions and treaties, and international war crimes tribunals, Sullivan sought to demolish every hint that the world community recognized corporate liability for the wrongdoing perpetrated by individuals. Corporate officers, of course, could be held liable, but that, she argued, was wholly different from liability for the corporation itself. When the Court turned from the Kiobel case and the Alien Tort Statute to a parallel question of liability for political organizations and entities under a different U.S. human rights law, the Torture Victim Protection Act, the entire hour was consumed with Justices and lawyers intensely focused upon how many meanings could be seen in the single word “individual.” (The second case was Mohamad, et al., v. Palestinian Authority, et al., 11-88.) The Justices were far more engaged with Stanford law professor Jeffrey Fisher, arguing that “individuals” under the torture act clearly had a “secondary meaning” that could include organizations, not just human beings. Fisher did perhaps as much as could be done with that argument, but it was not obvious that he had persuaded a deeply skeptical bench. The Court did not similarly press the other two counsel arguing against organizational liability under that act, Washington attorney Laura G. Ferguson and Justice Department lawyer Curtis E. Gannon, siding with the argument that the Palestinian Authority and the Palestine Liberation Organization were not subject to such lawsuits.