Cato files “originalist” Kiobel brief

Surprise of all surprises, the Cato Institute filed a brief in Kiobel v. Royal Dutch Petroleum!  And it came out in favor of … wait for it … not extending jurisdiction to corporations! Ilya Somin summarizes:

The Supreme Court made clear in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. (1999) that evolving methods of interpreting international law do not inform the ATS’s jurisdictional reach, which has not changed since 1789. Nonetheless, lower courts are split on whether corporations may be liable for the sorts of violations at issue here, largely due to their varied interpretive methods.

In our brief, we urge the Court to clarify the proper method of interpreting the law of nations under the ATS. We argue that Judge José Cabranes, a leading international law jurist (and Justice Sonia Sotomayor’s mentor) who authored the Second Circuit’s Kiobel decision, set out the correct interpretive method in an earlier case, Flores v. Southern Peru Copper Corp. (2003). Judge Cabranes’s reasoning in Flores embodied both the guidance that the Supreme Court would give in Sosa v. Alvarez-Machain (2004) and the teachings of classical theorists like Grotius, by defining customary international law as “composed only of those rules that States [countries] universally abide by, or accede to, out of a sense of legal obligation and mutual concern.”

Judge Cabranes used as relevant evidence the States’ formal lawmaking actions, such as international conventions that “establish[] rules expressly recognized by the contesting states” and international custom where the States adhere “out of a sense of legal obligation.” He further acknowledged that the method used in 1789 to interpret what comprised the law of nations defined both the claims and the parties cognizable under international law. By looking to the proper sources, Judge Cabranes correctly concluded that corporations cannot be held liable for violations of international law for ATS purposes, and in so doing recognized the constitutional checks that prevent courts from expanding their own jurisdiction.

The flippant analysis would note that if a 1798 statute that references something outside the text that has since changed, a judge reading the statute in 2012 might want to consider what the statute refers to looks like today. Much like how the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,” and isn’t limited to making treaties with countries that existed in 1789. Similarly, the prohibition of cruel and unusual punishment doesn’t just apply to punishments used when the bill was passed. Were that true, there would be a battery and jumper cables in the interrogation rooms of every police station in the country.

Of course, jurisdiction is more complicated than that, there are political questions and foreign policy concerns involved, historians disagree on whether corporations have ever been held liable for crimes against humanity, an argument like that doesn’t consider all precedent and would get you laughed out of any 1L classroom, etc… I guess what I’m trying to say here is that I haven’t really seen anyone take an idiosyncratic stance on this issue.  It seems as if one’s views on corporations is the sole determinant of how you think Kiobel should be decided.

But then again, what’s new?


About Charles Donefer

I am an attorney in New York City.
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