Curtis Bradley and Jack Goldsmith have an op-ed in today's Washington Post decrying a federal court's refusal to dismiss Alien Tort Claims Act suits against several American corporations for allegedly aiding and abetting the crimes of South Africa's apartheid regime. Their article begins:
As American taxpayers shell out hundreds of billions of dollars to bail out U.S. companies, a federal court in New York recently paved the way for significantly increasing some of these firms' financial burdens. Relying on the Alien Tort Statute of 1789, the court ruled this month that certain companies that did business with apartheid South Africa -- including distressed firms such as General Motors and Ford -- can be held liable for South Africa's human rights violations during that period.Also of note, the article makes a brief mention of State Department nominee Harold Koh, and his role in developing the legal theories upon which the litigation is based.
The Alien Tort Statute was designed to allow diplomatically sensitive tort cases to be brought in federal court in the hopes of avoiding the friction with foreign governments that could arise if state courts failed to provide a fair hearing. The statute hid in obscurity for almost 200 years before a federal appellate court in New York invoked it in 1980 to allow victims of human rights abuses committed abroad to sue foreign officials in U.S. courts. This holding turned the statute on its head by creating, rather than reducing, friction with other countries. It also spawned a cottage industry of human rights litigation.
The executive branch is unlikely to press for reversal. President Obama recently nominated Yale Law School Dean Harold Koh to be legal adviser to the State Department, the government office that presents the U.S. view of these cases to federal courts. Koh is an intellectual architect and champion of the post-1980 human rights litigation explosion. He joined a brief in the South Africa litigation arguing for broad aiding-and-abetting liability.Sounds to me like this issue could make for another good question to ask Koh at his confirmation hearing.