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Rutgers–Newark Law School Amicus Brief to U.S. Supreme Court Supports Use of Alien Tort Statute to Prosecute Corporate Human Rights Violations

February 27, 2012 – 

Clinical Professor of Law Penny Venetis and her students in the Constitutional Litigation Clinic at Rutgers School of Law–Newark filed an amicus curiae brief in two cases before the United States Supreme Court which have significant importance globally.

Con Lit & Justice Ginsburg
Hon. Ruth Bader Ginsburg (center) with Clinical Professor Penny Venetis (3rd from right) and her Constitutional Litigation Clinic students at the U.S. Supreme Court. Students are (l-r): Michael Bittoni ’12, Awinna Martinez ’12, Erin Phalon ’12, Diego Iniguez-Lopez ’13, and John Burzynski ’12.

Esther Kiobel v. Royal Dutch Petroleum Co. and Asid Mohamad v. Palestinian Authority and Palestine Liberation Organization represent only the second time that the U.S. Supreme Court will consider issues related to the Alien Tort Statute (ATS), which was enacted in 1789 by the First Congress. The Mohamad case is the first time that the Court will hear a case related to the Torture Victims Protection Act (TVPA) of 1991. The ATS, which was infamously invoked to permit slave traders to recover money damages when their human cargo was hijacked at sea, has been used exclusively in the human rights context since 1980.

Professor Venetis drew on the ATS in Jama v. U.S. INS, the landmark case she litigated which held that U.S.-based corporations, their officers, and employees could be sued for violating non-treaty-based customary international law for abuses committed on U.S. soil. The Jama litigation was resolved successfully in favor of the Clinic’s clients in 2007.

In Kiobel and Mohamad, the Supreme Court is considering whether corporations and organizations can be sued under the ATS for violating human rights. Venetis notes that the statute is silent on that issue, as there is almost no legislative history surrounding the statute’s enactment. Corporate liability was a central issue in the Constitutional Litigation Clinic’s Jama case.  

The Constitutional Litigation Clinic’s amicus brief argues that in interpreting the ATS, the Supreme Court should look to well-established civil rights law. Since 1961, the U.S. Supreme Court in Burton v. Wilmington Parking Auth. has held consistently that private corporations that work closely with government officials can be sued for constitutional violations.

The Constitutional Litigation Clinic’s brief was signed by civil rights scholars who specialize in constitutional law and constitutional litigation, including Professor Frank Askin, the Constitutional Litigation Clinic’s founder and current Director. Clinical Professor Sarah Ricks of Rutgers School of Law–Camden, who also specializes in civil rights law, is a signatory to the brief and led the efforts to secure signatures from civil liberties law professors around the country.

Read the brief at http://www.law.newark.rutgers.edu/files/KiobelMohamadAmicus.pdf.

Professor Venetis and her students will be attending oral arguments at the Supreme Court on February 28, 2012.