There's an interesting exchange going on over at the international law blog Opinio Juris on the Alien Tort Statute ... I put up a post citing to a short, decently explanatory, and even-handed news article in the Wall Street Journal by Nathan Koppel on the effect of ATS litigation as it reaches to corporations. I reproduce my post below. My co-blogger, international criminal law professor Kevin Jon Heller, responded with a post of his own criticizing one section of the article, quoting Joe Cyr, a New York attorney with a practice in corporate ATS defense. Mr. Cyr is kind enough to respond to KJH in the comments, and it unfolds from there. Interesting exchange; check it out.
Below the fold is my original ATS post at OJ. As readers of my stuff are aware, I am highly skeptical of the corporate liability claim in ATS litigation; I'm working, or will shortly be working, on something about it, but meanwhile, my basic view is set out in this expert declaration on behalf of corporate defendants in the Agent Orange ATS suit in front of Judge Weinstein a couple of years ago.
WSJ News Article on Alien Tort Statute Cases
The WSJ has a news story (Nathan Koppel, “Arcane Law Brings Conflicts From Overseas to U.S. Courts,” Thursday, August 27, 2009) on the rise of ATS suits against corporate defendants.
It quotes Curt Bradley, but interestingly (I thought, for an area traditionally dominated by academics), it has more quotes from practicing lawyers, including John Bellinger, Center for Constitutional Rights’s Katherine Gallagher, Paul Hoffman, and several others. It is scrupulously even-handed in having both pro-plaintiffs and pro-corporate defendants in the article, for-and-against, for-and-against. There’s nothing earth-shaking about it for those of us who follow this area, but I suppose a sign of the changing times that these suits against corporate defendants have produced a corporate defense bar. What about disputes over corporate liability? The article says:
The litigation has proven controversial. Some legal experts claim that opportunistic plaintiffs’ lawyers have seized on the long-dormant law to enrich themselves. Knotty geopolitical issues, they say, are better left to Congress and the White House, not unelected federal judges. But human-rights lawyers counter that victims of abuses often can’t obtain justice in foreign courts, making alien tort suits their only recourse. Both sides agree on one thing: Courts increasingly are willing to consider alien-tort suits and to force companies to answer for their behavior overseas.
“Think of a troubled spot in the world, and it likely has given rise to alien tort litigation,” says Curtis Bradley, a Duke University School of Law professor.
Adds human rights plaintiffs’ lawyer Paul Hoffman:
Most federal districts now allow suits against corporations for the same types of human-rights violations that can be brought against individuals — torture, extrajudicial killings, slavery-like practices, war crimes, says Paul Hoffman, a Los Angeles attorney who specializes in filing alien tort suits.
If you’re looking for a short, even-handed introduction to the current world of corporate ATS litigation - for a basic public international law class, for example - this is a pretty easy place to begin.