An upcoming Supreme Court case, Jesner v. Arab Bank, will decide whether corporations can be sued for human rights abuses under the Alien Tort Statute. This case, set to be argued during the term beginning in October 2017, will force some hard decisions for conservatives, including the newly minted justice Neil Gorsuch. For example, which decision will be the harder poison pill to swallow, a ruling upholding corporate liability that can be extrapolated to other cases, or giving an approving nod to a company that allegedly funneled payments to the families of suicide bombers?
In 1789, the first Congress adopted a sleeper of a law, the Alien Tort Statute. This law allows federal courts in the United States to hear cases filed by non-U.S. citizens for civil wrongs perpetrated in violation of international law. Originally, the Alien Tort Statute dealt with crimes such as piracy on the high sea. In more modern times, though, other wrongdoing, such as human rights violations, have been considered under this relatively arcane old law.
Much like the Reconstruction-era Constitutional amendments that waited a hundred years for the Civil Rights era to wake them from their slumber, the Alien Tort Statute lay mostly unused for generations. In 1980, though, the United States Court of Appeals for the Second Circuit held in the case of Filártiga v. Peña-Irala that Dolly M. E. Filártiga and her father, Dr. Joel Filártiga, had standing to sue Americo Norberto Peña-Irala, all citizens of Paraguay, for the politically-motivated torture death of Dr. Filártiga’s teenage son. Although the crime occurred in Paraguay, Dr. Filártiga later observed the officer who tortured his son to death walking free in Manhattan, and sought justice here. Peña-Irala moved to dismiss since they were no longer in Paraguay. However, torture, being an international crime against humanity, merited consideration due to the Alien Tort Statute. The Court eventually ruled in favor of the Filártigas.
Since the Filártiga decision, courts have invoked the Alien Tort Statute in cases concerning flagrant human rights abuses such as torture, terrorism, genocide, slavery, nonconsensual medical experimentation, and egregious labor violations that involve child labor or the murder of union leaders. One aspect that the courts are set to revisit is whether or not the Alien Tort Statute can be applied not just to individuals, but also to corporations that commit similar atrocities. In 2012, the Second Circuit decided in Kiobel v. Royal Dutch Petroleum that corporations are not proper defendants under the Alien Tort Statute. Other circuit courts disagree, leaving this door open for a Supreme Court decision to clarify the matter more definitively.
Last week, the Supreme Court agreed to hear the case of Jesner v. Arab Bank explicitly to resolve the question of how the Alien Tort Statute affects corporate liability. In this case, the Jordan-based Arab Bank stands accused of processing financial transactions through its New York branch for groups such as Hamas which have been linked to terrorism. The Second Circuit already ruled in favor of Arab Bank, upholding the notion that even corporations who aid and abet international crimes such as terrorism may not be sued under the Alien Tort Statute.
In the wake of decisions like Citizens United, though, the logical conclusions forced by the legal existence of corporate personhood bring up some relevant questions. For example, if corporations now have the rights of flesh-and-blood people, do they not also have the attendant responsibilities that should come attached to those rights? If corporate entities are able to exercise rights of free speech (especially in the form of financial contributions), yet are not held to the same legal standards by which natural people must abide (such as prohibitions against widely recognizable human rights abuses), will we have created even more of a monster?
This case, set to be argued during the term beginning in October 2017, will force some hard decisions for conservatives, including the newly minted justice Neil Gorsuch. For example, which decision will be the harder poison pill to swallow, a ruling upholding corporate liability that can (and will) be extrapolated to other cases, or giving an approving nod to a company that allegedly funneled payments to the families of suicide bombers? Stay tuned.