After the Supreme Court’s decision in Kiobel this week, there is a lot to feel angry about, and yes, there are ambiguities. The legal blogosphere has been buzzing, and while there are many different takes on what it all means, most people agree on a few things—the decision overall was a blow to human rights, and more generally, the Supreme Court has raised more questions than answers. We’ll be litigating the details for quite a while.
The range of opinions there and elsewhere is wide—however, perhaps none are more offensive or ridiculous than corporate defense counsel Kristin Linsley Myles’s characterization of the ATS in her post on SCOTUSblog (emphasis added):
The ATS was a largely neglected jurisdictional statute until the Second Circuit’s decision in 1980 in Filartiga v. Peńa-Irala, but since then, increasingly has been used to target deep-pocket corporate defendants with allegations that they aided and abetted human rights violations by foreign governments. The Court’s decision is likely to put a stop to these cases, particularly where, as in Kiobel, neither the events at issue nor the parties to the case have any connection to the United States.
In the interest of full disclosure, Kristin Linsley Myles was one of the lawyers who represented Unocal in ERI’s case Doe v. Unocal, so there’s some history between us. She and her co-counsel had no problem lining their own pockets defending the oil company against allegations of forced labor, torture, rape and extrajudicial killing in connection with their gas pipeline in Myanmar (Burma). Our clients suffered unspeakable violence at the hands of her clients, and then risked their lives to seek justice in US courts. Unocal, on the other hand, gave hundreds of millions of dollars to the notorious Burmese military junta to do business there, and millions to lawyers like Myles to avoid accountability for the abuses that they caused. And it’s our clients that Myles implies are motivated by profit?
Let’s be clear—it’s no accident that these corporations have “deep pockets”. Part of the reason that companies like Unocal, Chevron, and Shell engage in such risky projects is because they are so lucrative. They operate in the homelands of indigenous peoples, ethnic minorities and the poor, and make billions in doing so.
What Myles should have said was this: The biggest winners after Kiobel are not the “deep pocket” corporations, but the corporate lawyers who defend them. The Kiobel decision ensures years of litigation in the lower courts to determine the extent to which abuses that happen outside the US “touch and concern” this country. This means billable hours for corporate defense counsel who will represent these powerful interests against some of the world’s most vulnerable people. Human rights litigation has always been a David and Goliath struggle. Lawyers like Myles can stick with their deep-pocket clients—we’ll continue to represent the brave survivors of human rights whose struggle just got a little harder. We’ll see you in court.