A Gut Reaction to Today’s Kiobel Arguments

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I’m sitting here having a drink with Paul Hoffman, who argued Kiobel in the Supreme Court today, and the usual cast of ATS supporters.  We are reflecting on today’s argument. While you can never predict the outcome of a case from the oral argument, the mood here is much more New Year’s Eve than Irish wake.

A little context: in February, the court heard oral argument, ostensibly on the question of whether corporations can be sued for complicity in human rights abuses under the Alien Tort Statute. But much of the argument focused on an assertion made by supporters of Shell—that the ATS does not apply to claims arising abroad.

Since the plaintiffs had no opportunity to address that claim, the court ordered rebriefing and reargument. That argument was today, and we felt that it went well.  The court did not seem to be buying Shell’s position that corporations or “people” that commit human rights abuses in other countries are somehow immune from liability in U.S. Courts.  No one on the court seemed willing to overturn the precedent set in Sosa to find that the ATS does not apply abroad.  Justice Kagan actually read from the Sosa opinion today, reminding us that yesterday’s pirate is the modern day torturer, and our courts should keep the doors open to victims of these kinds of universally condemned human rights abuses.

Esther Kiobel and the Ogoni plaintiffs reaffirmed the importance of this statute in vindicating human rights and achieving justice.  If, as we believe, this is the highest calling of our nation’s court, the ATS will live to see another day. We’ll find out by June.

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