Kiobel, from 8500 Miles Away

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Last week, as everyone in my office geared up for yesterday’s Kiobel v. Shell Supreme Court argument, I hopped on a plane to Thailand. This morning, I discussed ERI’s groundbreaking Alien Tort Statute (ATS) case, Doe v. Unocal, with a remarkable group of 27 young lawyers from inside Burma (Myanmar), who are working to protect rights in their native country. But whether a case like Unocal will be possible in the future will depend on the outcome of Kiobel, so at 1am Thai time I was eagerly reading the argument transcript.

Words on paper obviously don’t compare to being in the courtroom for the argument, but I share Rick’s optimism about the outcome. In particular, I was surprised by the overreach of Shell’s lawyer, Kathleen Sullivan, and the incoherence and inconsistency of the position of the U.S. government.

Sullivan, who’s been ridiculed for her insistence at the original Kiobel argument that a corporation that committed piracy – the proverbial “Pirates, Inc.” – could not be held responsible, doubled down on her position this time. According to Sullivan, not only could Pirates, Inc., not be sued – but actual pirates could not be sued, either, because the ATS does not extend to any claims outside the United States. And Sullivan affirmed that Shell’s position was that the seminal Filartiga case, which began modern U.S. human rights litigation and which the Supreme Court has previously approved, was wrongly decided. She gave no ground on the position that the ATS should not apply to any acts outside the United States, period.

The US government, represented by Solicitor General Donald Verrilli, did not fare much better. As the government sometimes does, it took a very narrow position in this case – arguing that this particular case against Shell should not proceed, but not really explaining the principles by which courts should determine whether other cases should proceed. The justices pointed out that prior US administrations had taken different positions, and so that might diminish the persuasiveness of the government’s argument. And Verrilli wouldn’t give a clear answer on whether a case like Kiobel should proceed if the defendant were a U.S. company, which renders the US government’s position pretty unhelpful to the Court.

It’s always hard to predict what the Supreme Court will do based on oral argument. But Shell’s extreme position seemed to have few if any friends on the bench, and the government’s position simply didn’t seem to help anyone.

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