The day after SCOTUS ordered the expansion and reargument of Kiobel, I sat in a coffee shop with a friend (and fellow law student) reading the New York Times. As I read through an article about the case, which gave a bare-bones account of the summary of the issues and the March 6 decision, I parroted the facts to my companion: “Unbelievable! They want to know whether U.S. courts can even hear cases alleging human rights abuse abroad! This shouldn’t even be an issue!”
To my great dismay, instead of sharing my outrage, my friend simply responded, “Well, why should U.S. courts be allowed to hear cases between two foreign parties for abuses committed abroad?”
At the time, I stammered through an argument about providing remedies and upholding international human rights norms, but I admit that at the time I could not provide the legal analysis he was looking for. A first-year law student too often buried in my Property and Civil Procedure textbooks, I rarely found the time to immerse myself in the issues that sent me to law school in the first place. Thankfully, my summer legal internship has quickly corrected this.
Last week, the EarthRights office was abuzz as we put the finishing touches on own amicus brief in support of Esther Kiobel and her co-plaintiffs, and helped our allies finalize three other briefs. While I can’t take credit for piecing together any of the substance that will hopefully convince SCOTUS to rule in favor of corporate liability, working alongside those who did was definitely a far cry from my experience in March, when my head was stuck in my Property book. The process was demanding, and tedious at times, but the experience was invaluable and the gravity of the Kiobel case constantly drove our work forward.
On the practical side, I learned that preparing an amicus brief takes a lot of work. Of course, I didn’t assume writing a brief would be an easy task. Truly, the process of crafting arguments and laying out legal theories felt like an entire law school class packed into a few short days. But the rest of the process — proofreading all those dense legal arguments, pulling out sources, formatting pages, and generally making the brief look like something the Supreme Court should take seriously — was surprisingly also a task that required everyone to pitch in hours of effort.
For me, though, the hard work was rewarded in full by the chance to combine legal work with human rights advocacy (the stuff that drew me to law school in the first place), as well as the potential end of preserving an important source of redress for human rights abuses.
The U.S. brief in support of Shell was a serious letdown after so much hard work (and to think I was only at it for a week; the rest of our staff have been pouring energy into this case and this movement for much longer). However, this time, after being a part of EarthRights’ efforts to support the Kiobel plaintiffs and other survivors of human rights abuses in accessing justice, I at least feel prepared to speak out and say why the government’s position is wrong:
The Alien Tort Statute was drafted specifically to provide a forum for parties seeking relief for violations of the law of nations. Through the ATS, the U.S. merely allows human rights norms that are widely recognized to be protected within its courts. This is a role that the United States should be proud to play. Refusing to do so would allow corporations to enter foreign countries, abuse the communities there, and remain unaccountable. While the U.S. brief sadly refuses to recognize this, opting instead to protect foreign corporations, SCOTUS can still decide that it will take a stand against human rights abuses. And after spending quality time with the briefs ERI has filed, and the many others supporting redress through the ATS, I will be truly baffled if they don’t.
This guest post was contributed by Emily Ponder, a legal intern in our U.S. office. Emily is a rising second-year law student at the University of Virginia School of Law.