Supreme Court To Rule On Corporate Personhood For Crimes Against Humanity

Discussion in 'Politics and the Topics of the day' started by thoughtone, Oct 17, 2011.

  1. thoughtone

    thoughtone BGOL Supporter Registered

    source: Huffington Post

    Supreme Court To Rule On Corporate Personhood For Crimes Against Humanity

    The Supreme Court on Monday morning agreed to hear a case over whether corporations can be sued in federal courts for human rights violations occurring overseas.

    The case, Kiobel v. Royal Dutch Petroleum, arises out of a suit by a dozen Nigerian plaintiffs claiming that Royal Dutch and two of its Shell Oil subsidiaries worked with the Nigerian government to torture and extrajudicially execute individuals protesting against the companies' oil exploration.

    The plaintiffs filed suit in United States district court under the Alien Tort Statute, which empowers the federal courts to hear cases by "an alien" bringing a civil suit for wrongs committed "in violation of the law of nations." The first Congress passed the ATS into law in 1789.

    While the ATS indicates who can sue, it does not say who or what can be sued. In Kiobel, the 2nd Circuit Court of Appeals held, by a 2-1 vote, that only natural persons, and not corporations, may be held liable under the ATS. "Corporate liability is not discernible" under the ATS, wrote the majority, because "no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights."

    The D.C. Circuit and 7th Circuit split with the 2nd Circuit shortly after its Kiobel decision. Judge Richard Posner of the 7th Circuit, in his opinion for a unanimous panel, found the "factual premise of the majority opinion in the Kiobel case incorrect," citing the allied powers' dissolution of German corporations that had aided the Nazi government in violation of customary international law.

    Even so, Posner continued, that fact "has nothing to do with the issue of corporate liability." Rather, as the D.C. Circuit put it, courts should look to whether the cause of action -- in Kiobel, a claim such as torture -- is "clearly established in the law of nations," and then ask whether corporations are generally held liable in domestic lawsuits.
    The Supreme Court will now step in to resolve the circuit split, but Kiobel's outlier status does not signal an easy reversal. The D.C. Circuit's dissenter, Judge Brett Kavanaugh, agreed with the 2nd Circuit's approach in Kiobel and found that "customary international law does not recognize corporate liability." Kavanaugh's dissents in the past have served as clarion calls for the Court's conservatives, so what he believes may be a good indicator for how the justices may come out. And Kavanaugh, a former clerk for Justice Anthony Kennedy, believed that "it would be quite odd for a U.S. court to allow a customary international law-based ATS claim against a corporation when no international tribunal has allowed a customary international law claim against a corporation."

    Yet for many, it would also be quite odd for the Court, which found in Citizens United that the Framers intended the First Amendment to apply to corporate persons, to reject the concept when it comes to corporate liability for crimes against humanity under a Founding-era statute.

    The Court will likely schedule oral argument in Kiobel for February, with a decision to be handed down by late June.
  2. QueEx Well-Known Member Super Moderator

    one year later . . .

    Justices Begin Term by Hearing Case Again


    WASHINGTON — The Supreme Court opened its new term on Monday with an encore, hearing arguments in an important human rights case it first considered in February.


    The question then was whether federal courts have jurisdiction to hear lawsuits against corporations said to have committed human rights abuses abroad.

    But it quickly became clear that some of the justices were interested in addressing a broader question.

    “What business does a case like that have in the courts of the United States?” Justice Samuel A. Alito Jr. asked at the argument in February. “There’s no connection to the United States whatsoever.”

    Six days later, the court issued an order calling for new briefs and a reargument on that larger question of whether such suits are proper if they involve corporations or not. The last time the court asked for a second set of arguments was in 2009, in the Citizens United campaign finance case.

    The human rights case, Kiobel v. Royal Dutch Petroleum Company, No. 10-1491, was brought by 12 Nigerian plaintiffs who said the defendants, English and Dutch oil companies, had been complicit in torture and executions committed by the Abacha dictatorship in Nigeria.

    They said their case could be brought in the United States because of the Alien Tort Statute, a 1789 law that allows federal courts to hear “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.”

    A majority of the justices on Monday seemed prepared to limit the reach of that law, but there was no apparent consensus on how to do so.

    The plaintiffs’ lawyer, Paul L. Hoffman, told the justices that there were good reasons to allow the case to be heard in an American court. His clients live in the United States, having received asylum, and the companies do business here, he said.

    Justice Anthony M. Kennedy wondered if courts abroad could on that same theory hear suits over claims that American companies committed human rights abuses in the United States.

    Mr. Hoffman said that was possible.

    Kathleen M. Sullivan, a lawyer for the defendants, said Congress was free to enact a broader law than the one it passed in 1789. But she said that law did not allow suits over conduct that took place abroad.

    In Sosa v. Álvarez-Machain in 2004, the Supreme Court left the door open to some claims under the law, as long as they involved violations of international norms with “definite content and acceptance among civilized nations” like piracy and attacks on ambassadors.

    Justice Stephen G. Breyer said it was a small step from piracy to torture and genocide.

    “If, when the statute was passed, it applied to pirates, the question to me is, who are today’s pirates?” he said. “And if Hitler isn’t a pirate, who is? And if, in fact, an equivalent torturer or dictator who wants to destroy an entire race in his own country is not the equivalent of today’s pirate, who is?”

    Justice Elena Kagan read from the Sosa decision to suggest that Ms. Sullivan was asking for too much. “For purposes of civil liability, the torturer has become like the pirate and slave trader before him, an enemy of all mankind,” the Sosa decision said, quoting from a seminal 1980 decision of the federal appeals court in New York.

    Ms. Sullivan responded that “the fact that the nations of the world agree on norms does not mean the nations of the world agree on remedies.” Allowing civil suits in American courts over human rights violations abroad, she went on, should be allowed only if Congress specifically says so.

    Ms. Sullivan said she also had backup positions. The first was the one she pressed in February, that corporations may not be sued under the 1789 law. The second was that only claims of direct action, as opposed to aiding and abetting, are covered.

    Solicitor General Donald B. Verrilli Jr. argued in support of the defendants. But he did not endorse Ms. Sullivan’s broad argument that federal courts may never hear cases about human rights violations abroad.

    Instead, he urged the justices to take the smaller step of barring suits against “a foreign corporation when the allegation is that the defendant aided and abetted a foreign sovereign.” Under that approach, suits over direct involvement in abuses or against individuals who later moved to the United States or against American companies might still be proper.

    Whether those kinds of suits should be allowed, Mr. Verrilli said, depended on “a weighing of interests.” That somewhat fuzzy approach did not seem to satisfy some of the justices. “I really don’t understand how you would decide,” Justice Alito said.

    When Mr. Hoffman, the plaintiffs’ lawyer, returned to the lectern for rebuttal, he grew more passionate. He said that shutting down the possibility of human rights suits in American courts over conduct abroad would allow torture and other atrocities to go unpunished.

    “Suppose there is an Iranian corporation that secretly supplies poison gas to the current Syrian regime in order to kill tens of thousands of Kurdish citizens,” he said. Denying those Kurds the right to sue after being granted asylum here, he said, would be like protecting “a modern-day I. G. Farben,” the German chemical company that collaborated with the Nazis. ​

    A version of this article appeared in print on October 2, 2012, on page A16 of the New York edition with the headline: Justices Begin Term By Hearing Case Again.


    COINTELPRO Well-Known Member BGOL Investor

    Corporations are governmental entities?

    When you start a company, you go to the government at the state level and receive the privilege/permission to operate an organization in concert with investors and stakeholders. Corporation are entities of the state, that are not much different than state run enterprises. Here the government is letting the citizens perform this needed function of society and taxing the profit received.

    I believe the person(s) involved should be held criminally liable. It would be like holding a gun or knife responsible for committing a crime against humanity. The person involved committed the crime, not the corporation. A corporation (a mechanism to perform a function of society that the state doesn't want to perform) is no different than a gun.

    To hold an entity responsible, it requires complex intelligence systems, and self awareness of the acts being performed. Let say a corporation or gun had sophisticated AI that was self aware and went along with criminal acts, than it should be held responsible. For example, I am in the military and a general orders me to commit a crime and I went along with it, because both parties were self aware of the criminal acts, than both are responsible.

    I never prescribed to this corporate personhood argument because the Supreme Court failed to consider this.
    Last edited: Oct 2, 2012
  4. thoughtone

    thoughtone BGOL Supporter Registered

    It's called a Charter.
  5. QueEx

    QueEx Well-Known Member Super Moderator

    Just happened across this interesting reference to Judge Kavanaugh — whose nomination as the next Supreme Court Justice is presently pending before the U.S. Senate.


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