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Two Amicus Briefs Filed in Supreme Court on Future of Human Rights Litigation

This article appears in the Fall 2012 CLINIC NEWS.

The Con Lit Clinic filed two amicus briefs in the U.S. Supreme Court in the human rights case Kiobel v. Royal Dutch Petroleum. Under the supervision of Clinical Professor Penny Venetis, students worked on the briefs and met with Justice Ruth Bader Ginsburg after the first oral argument (the second argument is scheduled for October 2012).

In Kiobel, Shell is accused of conspiring with the Nigerian military to torture and kill opponents of its Niger Delta pipeline. Kiobel was brought under the Alien Tort Statute (ATS), enacted by the nation’s first Congress. Although not intended as such, since 1980 the ATS has been used in the human rights context, almost exclusively, to redress human rights abuses originating far from U.S. soil.

The ATS is silent on the issue of corporate liability. Until Kiobel, all federal courts agreed that corporations, like individuals, could be sued under the ATS, including the court that presided for 12 years over the clinic’s lawsuit Jama v. Esmor Correctional Services Inc. Jama was the first successful domestic ATS case and involved human rights abuses against political asylum seekers detained in New Jersey on behalf of the U.S. government by a private prison company.

The Second Circuit’s Kiobel decision proved to be an outlier. Since it was decided in 2010, the Seventh, Ninth and D.C. circuit courts of appeals all categorically rejected Kiobel and upheld corporate liability under the ATS. Nonetheless, the Supreme Court decided to resolve the circuit court split.

Originally, the narrow issue on appeal in Kiobel was whether the ATS contemplates corporate liability. Soon after oral argument, however, the Court issued an order asking for additional briefing on the much broader issue of whether U.S. federal courts have any authority to preside over human rights cases when abuses occur extra-territorially.

It remains to be seen whether the Supreme Court will overrule 30 years of federal court human rights-related ATS jurisprudence. Since 1980, U.S. courts have served as the only sure fora for victims of gross atrocities. Those individuals could seek justice against persons and corporations that violated their most fundamental rights. As the Con Lit Clinic stated in its amicus briefs, there is no legal justification for the Supreme Court to change that course.