On Friday, the Second Circuit Court of Appeals, in New York, denied rehearing in the Kiobel case, in which it had ruled that corporations could not be sued for violations of international human rights law under the Alien Tort Statute (ATS).
The court split 5-5 on rehearing the case (for some reason, Judge Lohier, who joined the court in December, did not vote, although he was entitled to do so). Four judges issued a dissent from the denial of en banc rehearing.
Additionally, the judges on the original panel–Cabranes, the author, Jacobs, the Chief Judge who joined Cabranes, and Leval, who disagreed–also filed additional opinions. Most extraordinary is Chief Judge Jacobs’s opinion, which essentially states that–apart from the legal analysis given in Judge Cabranes’s actual decision–he joined the decision due to a number of policy reasons.
This may undermine the weight that other courts give to Kiobel, because, as Judge Leval points out in his response to Jacobs, judges are generally supposed to stick to the law and leave the policy to other branches of government.
But the current implications here are quite bad, especially for litigants in the Second Circuit–which includes the plaintiffs in the Apartheid cases, among others. Unless the court takes a later case for en banc hearing or rehearing, the only avenue for those litigants is the Supreme Court. The decision does not directly affect litigants elsewhere in the country, but still could be influential.
(It’s also clear that my earlier analysis of what was going on with the weird issued-and-then-withdrawn orders in December was wrong. What was likely happening was that they had already voted to deny en banc rehearing, but the clerk wasn’t supposed to issue the order then because the judges needed time to prepare their opinions.)