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Bradley & Goldsmith on Alien Tort Statute Apartheid Litigation:

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.

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.

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 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.

The good folks at Opinio Juris have more on the Bradley-Goldsmith op-ed here, here, and here.

Prosecutorial Indiscretion:
I wonder how long the executive branch would maintain its position if someone used the FTCA to sue Google for human rights abuses in China.
4.19.2009 2:19pm
geokstr:

This holding turned the statute on its head...

Hey, statutes, like that other meaningless piece of scrap paper, the Constitution, are living things, suitable for flipping, twisting and turning inside out. Oh, and for framing too.
4.19.2009 2:28pm
Cornellian (mail):
This holding turned the statute on its head by creating, rather than reducing, friction with other countries.

Thus we see the pattern of reasoning indulged in by left and right alike, though in this case by a couple of conservatives. This is what the statute says:

"The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."

There's not a word about diplomatically sensitive cases or friction with other governments. The whole "turning the statute on its head" complaint has nothing to do with what the statute actually says, but rather some underlying penumbral purpose to which the authors would like the courts to adhere, regardless of what the statute actually says.

I'm not buying it. Maybe you don't like the effect of this statute today because there's a lot more "law of nations" and treaties around today than there were 200 years ago. That's fine, then ask Congress to change the law, don't ask courts to ignore the plain wording of the statute because you don't like the outcome.
4.19.2009 2:37pm
Jay:
Cornellian--The more complicated, textual point is that the statute just says it grants "jurisdiction" to district courts to hear such suits; it's not very clear about how to discern the substance of the underlying law, or what remedies exist. In Sosa v. Alvarez-Machain, noted conservative Justice Souter largely limited its reach to violations of the law of nations at the time of its passage, although leaving the ground open for new ones to be discerned in the future.
4.19.2009 3:38pm
Cornellian (mail):
Jay,

No doubt that is a difficult issue but according to the article it was a refusal to grant defendants' motion to dismiss and you don't win that kind of issue in that procedural posture.
4.19.2009 3:41pm
alkali (mail):
The op-ed states (emphasis is mine):

[T]he court ruled that firms were liable for a foreign government's human rights violations, even if they did not engage in the abuses or intend to facilitate them, as long as companies were aware that their business activities would substantially assist the government's illegal practices. This put GM and Ford on the hook for supplying trucks that the South African government used to attack anti-apartheid activists, and IBM for providing computers and software that the government used to register and segregate individuals.

In other words, if a company actually knows that it is selling goods that are going to be used to commit human rights violations, the company may be liable to the victims. That is not a particularly novel concept: for instance, the owner of the firm that manufactured Zyklon B was tried and executed after World War II.
4.19.2009 3:57pm
smart guy (mail):
@alkali

that's a good analogy
4.19.2009 5:11pm
NickM (mail) (www):
That would bar the sale of almost anything other than food and textiles to repressive governments.

Google had better prepare for the mother of all class-action suits.

Nick
4.19.2009 5:27pm
dumb guy (mail):
how about cisco supplying routers to china?

http://www.npr.org/templates/story/story.php?storyId=5219005
4.19.2009 5:42pm
David M. Nieporent (www):
That is not a particularly novel concept: for instance, the owner of the firm that manufactured Zyklon B was tried and executed after World War II.
False. Nobody from IG Farben was executed. Many executives of the company were tried, but not for merely selling things to the German government; all the convicted parties were directly involved in the Nazi government's activities. For instance, actually using slave labor from concentration camps.
4.19.2009 5:49pm
David M. Nieporent (www):
That would bar the sale of almost anything other than food and textiles to repressive governments.
Exactly. This is an attempt by class action lawyers to enrich themselves impose economic sanctions on foreign countries without actually having to go to the trouble of convincing Congress to vote to impose sanctions on those countries.
4.19.2009 5:51pm
Duffy Pratt (mail):
The cause of action under the Alien Tort Act is a tort which was committed in violation of the Law of Nations or a treaty. When such a tort is alleged, there is Federal jurisdiction. If the court had dismissed the case, there is nothing in theory to stop the plaintiffs from filing the same claims against the defendants in state courts. Would you really prefer, for example, the courts of Texas or Alabama to be deciding these sorts of issues?
4.19.2009 6:19pm
Matthewccr (mail):
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.

I know this is quote from the op-ed and not your language, but it was the plaintiffs, and the plaintiffs attorneys, the Center for Constitutional Rights, who invoked it, not the judge. CCR revived the law (and has been on the front lines of bringing and litigating ATCA/ATS cases).

And as for enriching plaintiffs' attorneys -- I've spent five years at CCR. We've lost many times more money litigating these cases than they have ever brought in. Trust me; it's not about the money here.
4.19.2009 6:29pm
Sam H (mail):
"And as for enriching plaintiffs' attorneys -- I've spent five years at CCR. We've lost many times more money litigating these cases than they have ever brought in. Trust me; it's not about the money here."

Right. You charge $1,000/hour and when you end up with $500/hour, you claim you lost money.
4.19.2009 6:46pm
Per Son:
Damn Sam:

Seems like you know what you are talking about - can you provide us with the salaries of those wealthy ATCA attorneys?

I doubt CCR or Laborrights.org, are really making killings.

Do you think the Institute for Justice just brings cases for making big money - or do you believe they have a higher purpose?
4.19.2009 7:47pm
Patrick216:
This litigation underscores the danger of "international law," and the growing reliance by U.S. courts on such "international law." "International law" (as defined by law professors and various European interest groups) says that selling cars to the South African government is a material contribution to a terrorist government, so now we can recover a $10 billion judgment against Ford and GM under the Alien Tort Statute. Then, the radical anti-American leftists who handle the suit can funnel the money back to their law professors and European interest groups, who can then make additional declarations of more conduct that violates "international law." A tidy relationship if I do say so myself.

Here's my next question. Do any of these radical anti-American groups also believe that the Alien Tort Statute allows for the imposition of penalties and remedies under "international law" for violations of "international law?"

After all, over a billion people in this world live under Shari'a law. Perhaps CCR could petition the court to have the hands of Ford and GM executives chopped off as a Shari'a penalty. In many African countries, land confiscation is a common penalty. Maybe CCR can obtain a land confiscation decree and take the houses away from all the Ford and GM executives, officers, directors, managers, and institutional shareholders.
4.19.2009 7:47pm
alkali (mail):
I wrote: ... the owner of the firm that manufactured Zyklon B was tried and executed after World War II.

David Nieporent: False. Nobody from IG Farben was executed.

I was thinking about this case. In any event, the IG Farben case stands for the same premise.
4.19.2009 7:49pm
Per Son:
Patrick:

It was not leftist law professors who drafted ATCA or invented the concept of the Laws of Nations.

If you want to really be technical, the US probably uses much less international law than it did 100 years ago.

Read Paquette Habana.
4.19.2009 7:52pm
Cornellian (mail):
It was not leftist law professors who drafted ATCA or invented the concept of the Laws of Nations.

It was that notorious bunch of lefties, the Congress of 1789.
4.19.2009 8:36pm
Oren:

I wonder how long the executive branch would maintain its position if someone used the FTCA to sue Google for human rights abuses in China.

The faster it happens, the faster Congress amends the law.
4.19.2009 9:07pm
Duffy Pratt (mail):
Patruck216:

The Alien Tort Act does nothing more than allow for federal jurisdiction. It does not create any cause of action, nor any remedies. State courts are courts of general jurisdiction and are always open to hear the same claims. If a person commits a tort against another person, the aggrieved person can sue in state court. If a person commits a tort against an alien, and that tort is also in violation of the law of nations or a treaty, then the aggrieved person can sue in Federal court. The statute says absolutely nothing about anyone's substantive rights.
4.19.2009 10:13pm
Fedya (www):
I can't help but think of Ed Fagan, the ambulance chaser who sued (or tried to sue) lots of foreign entities in various attention-grabbing attempts to enrich himself.
4.19.2009 10:50pm
David M. Nieporent (www):
Seems like you know what you are talking about - can you provide us with the salaries of those wealthy ATCA attorneys?

I doubt CCR or Laborrights.org, are really making killings.
No, but I don't think Cohen Milstein and Paul Hoffman and Motley Rice have been litigating these ATCA cases out of the goodness of their hearts.


(By the way, what "constitutional rights" exactly are at stake? Does CCR not even read their own letterhead?)
4.19.2009 11:54pm
jgshapiro (mail):
Does anyone else think the analogies between selling bio weapons to terrorists and Zyklon-B to Nazis are far afield from selling cars and computers to the S.A. apartheid regime?
4.20.2009 12:57am
The River Temoc (mail):
The problem with the ATS is that it is allowing U.S. federal courts to become a court of last resort for anyone with a grievance against an authoritarian government. Surely the 1789 Congress never meant for U.S. federal courts to become the arbiter of every obscure ethnic or political conflict around the world. And they certainly never meant it to preclude the U.S. from trading with authoritarian countries.

I would tentatively be in favor of a repeal.
4.20.2009 2:20am
The River Temoc (mail):
Do you think the Institute for Justice just brings cases for making big money - or do you believe they have a higher purpose?

The bottom line, however, is that neither CCS nor the Institute for Justice ought to be using the courts to attain a "higher purpose" -- they courts are meant for adjudicating disputes, not resolving moral issues.

It may very well be that CCS is doing all this litigation on a pro-bono basis. That does not, in and of itself, make the litigation commendable. It is undermining our national competitiveness and making it more likely that entrepreneurs who want to do business in places like China will set up shop in somewhere like Singapore, Geneva, or Dubai.

That not only hurts the U.S. economically, but it also makes it less likely that the authoritarian country in question will democratize.
4.20.2009 2:25am
Ricardo (mail):
I wonder how long the executive branch would maintain its position if someone used the FTCA to sue Google for human rights abuses in China.

Well, it's not Google, but "Last year, Yahoo! was sued for its decision to give China access to a political dissident's e-mail account. The online search engine settled."

Link here

You will remember that Yahoo executives apologized in public to the family of the person who was arrested by Chinese authorities.

In regards to the South Africa lawsuit, the op-ed and the comments here are largely short on facts. I don't know enough of the facts myself but the complaint against car manufacturers was not just that they sold cars to South Africans but rather that they sold vehicles to the government that were then converted into armored vehicles used to patrol and in some cases, destroy, townships.

A lot would seem to hinge on the particular facts of the case rather than sweeping statements about the right of a company to sell whatever it wants to a foreign government without regard to the consequences. There's also the question of when a threshold is reached so that an individual or corporation can be held liable for violations of the law of nations or of treaties and whether that threshold was reached. The Zyklon B case establishes the existence of a threshold: whether it applies here (and whether American courts would recognize the precedent) are open questions.
4.20.2009 3:50am
Patrick216:
Yahoo shouldn't have been subject to tort liability for doing that. You might not like China, but the fact is that China is a sovereign nation with a government that is recognized by the U.S. If you want to do business in China, you have to obey Chinese law. So if the State Security Bureau comes a-knockin' and asks you to identify a political dissident, you have to turn that information over. If the company doesn't like it, it can simply stop doing business in China--though I'd hate to be a China-based employee of Yahoo under such conditions.

I'm with River Temoc. It's time to repeal the ATCA.
4.20.2009 7:58am
Ricardo (mail):
Yahoo shouldn't have been subject to tort liability for doing that.

Yahoo apologized and settled the lawsuit while Congress has been debating an even more stringent regime that would actively prohibit U.S. companies from collaborating with the security forces of repressive governments.

It actually seems the hypothetical about Google being sued is not going to happen in reality anyway: Google provides a (censored) search engine on Chinese servers but does not host gmail on any servers located inside China exactly to avoid these problems.
4.20.2009 8:43am
Per Son:
River Temoc:

When I said higher purpose - I meant that the organizations pursue litigation not just for money - but to pursue certain agendas through legitimate court cases.

As for David M. Nieporent regarding Cohen Milstein and Paul Hoffman - I believe there has not been a single attorney to earn even a penny from succesful ATCA cases.

Cohen Millstein makes its money from over class actions.
4.20.2009 9:19am
alkali (mail):
@jgshapiro: Does anyone else think the analogies between selling bio weapons to terrorists and Zyklon-B to Nazis are far afield from selling cars and computers to the S.A. apartheid regime?

1) I agree in general it is best to avoid comparisons involving the Nazi regime, but if you want to talk about adjudicated cases involving international human rights law and allegations of crimes against humanity, you pretty much have to talk about Nuremburg, because there really isn't much else

2) The court opinion, which I have found today, discusses the standard of liability in this case at pp. 56+ (pp. 60 and following of the PDF) -- the plaintiffs have to show awareness on the part of the defendants that their products were being used for human rights violations -- showing that a company sold passenger cars to the South African government isn't enough
4.20.2009 9:57am
Oren:

the plaintiffs have to show awareness on the part of the defendants that their products were being used for human rights violations

So, in the future, corporations should be clear never to find out what they are selling is going to be used for. Simple enough -- don't ask, don't tell!
4.20.2009 12:56pm

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