The politics of Kiobel v. Royal Dutch Petroleum

Last week, I dumped some cold water on the idea that Kiobel will be a political issue this year.  Anti-big business types can latch on to the idea that corporations are people when it suits them and aren’t when it doesn’t. America-firsters can bristle at the use of international law and the idea that foreigners are clogging up our court system. Yet somehow I can’t see this being an issue in the same league as gay marriage was in 2004 or prayer in schools has been for decades.  Citizens United came down with a bang, but election day responded to it with barely a whimper.

Marcia Coyle of The National Law Journal: makes a comparison with Citizens United:

The next Citizens United, in the view of some of that decision’s most vigorous critics, may have nothing to do with campaign finance or the First Amendment.

Instead, corporations in a case the justices will hear this month seek not to spend their money but to avoid doing so by arguing that they have no liability under a 1789 statute for torts committed abroad in violation of international law or U.S. treaties.

The case, Kiobel v. Royal Dutch Petroleum Co., involves the Alien Tort Statute (ATS) and is scheduled for argument on Feb. 28. Kiobel will be heard in tandem with Mohamad v. Palestinian Authority, which raises a similar question involving claims against non-natural persons under a different statute — the Torture Victim Protection Act. Kiobel starkly pits the business community against human rights organizations.

Let’s look at the potential winners and losers in Kiobel.  In one corner are the Rio Tintos and Royal Dutch Shells of the world, who would rather not publicly dwell on the kind of things they do to get the stuff they sell.  The think tanks will write amici and talking points, but it doesn’t behoove them to talk more about it.  In the other corner, we have ATS plaintiffs: poor, often indigenous people considered to be, at best, inconveniences by their own nations. Speaking on their behalf are a bunch of clinical professors and human rights lawyers. 

Citizens United‘s winners and losers included politicians, who just happen to have a metaphorical megaphone and a predilection to use it.  I find it hard to imagine that Kiobel will have the sustained attention of anyone who has any sort of audience.

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About Charles Donefer

I am an attorney in New York City.
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