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Is the Alien Tort a Zombie Doctrine? Andrew Pincus Responds

29 April 2013
The Litigation Daily

Andrew Pincus is a partner in Mayer Brown's Supreme Court and appellate practice who has represented defendants in alien tort litigation. He submitted this column in response to "The Zombification of the Corporate Alien Tort" (Litigation Daily, April 21, 2013), by American Lawyer senior international correspondent and Global Lawyer columnist Michael D. Goldhaber.

Commentators have bemoaned the U.S. Supreme Court's recent decision in Kiobel v. Royal Dutch Petroleum as the "death" of liability under the Alien Tort Statute (ATS). The American Lawyer's Michael Goldhaber wrote that the court had rendered the corporate alien tort "a zombie doctrine—not quite alive and not quite dead."

But can a cause of action be killed, or even zombified, if it never existed in the first place?

The narrative of a pro-business Supreme Court taking away plaintiffs' rights may be comforting to advocates of ATS liability nursing the wounds of defeat, but it bears little resemblance to reality. The ATS saga is instead one of a strategy doomed from the outset, beginning with the choice to focus on the courts—rather than Congress or the public—in promoting human rights.

Let's start with the litigation strategy. Until it was seized upon by human rights advocates in the late 1970s, the ATS—enacted in 1789—had been dormant for nearly 200 years. Advocates saw an opportunity to combine the statute's vague grant of "jurisdiction" with evolving international human rights norms to empower U.S. courts to adjudicate claims for alleged human rights violations anywhere in the world.

But by the early 1980s, it was clear that prevailing legal doctrine and public opinion were both turning decidedly against "judge-made law." And proponents of ATS liability needed a mountain of judge-made law, including recognition of the cause of action, judicial identification of actionable international law norms, and resolution of questions of secondary liability, among others.

Moreover, this new cause of action was to apply to conduct anywhere in the world by citizens of any nation. That inevitably would trigger concerns about judicial interference with U.S. foreign policy, raising still more standards to be established by the courts. For example, should plaintiffs be required to exhaust their remedies in their home countries? Should the executive branch be able to terminate lawsuits that harm U.S. policy interests? And how much weight should judges give questions of international comity when deciding whether a particular case should go forward?

Finally, consider the breathtaking assertion of extraterritorial authority. Americans have never been shy in claiming that their legal system can and should resolve almost any dispute. But contending that a U.S. court should decide whether a British company's actions in Africa, or anywhere else in the world, amount to violations of international law seems quite a stretch, even for Americans. That is especially true when adjudicating the case would require the U.S. court to determine whether or not the country in which the violation occurred was itself an international law violator.

How would Americans respond if courts in China or Russia, or France or Italy, decided to adjudicate claims that American soldiers or American companies were violating human rights standards in Afghanistan or Iraq, or even within the United States? My guess is that there would be an uproar about incursions on U.S. sovereignty. But that is precisely what the advocates of expansive ATS liability sought.

There were early warning signs that this legal enterprise was on very shaky ground. True, the idea of liability was accepted in the Filartiga case. But just four years later, in 1984, Judges Bork and Robb—whose judicial philosophies were much more closely attuned to the prevailing view of the role of the courts than the members of the Filartiga panel—wrote opinions in Tel-Oren v. Libyan Arab Republic rejecting ATS liability based on the very same concerns that motivated the Supreme Court's Kiobel decision this month.

Through the ensuing decades, skirmishing on these legal issues continued in the lower courts. Along the way, however, the nature of the litigation fundamentally changed. The defendants in Filartiga and Tel-Oren were the persons or entities that themselves had engaged in heinous conduct that plainly violated international law. Because virtually all international law norms apply to government actors, not private parties, that approach limited the scope of liability and the number of cases that could be filed.

But human rights advocates, often joined by leaders in the plaintiffs bar, began to sue corporations as "aiders and abettors" of other nations' international law violations. And large damages claims—such as the case seeking billions of dollars from more than 50 companies for "aiding and abetting" apartheid in South Africa by simply doing business in that country—began to appear.

When the Supreme Court addressed the statute for the first time, in its 2004 decision in Sosa v. Alvarez-Machain, even Justice Souter's majority opinion sent clear warnings about the questionable foundations of ATS claims.

But the ATS litigation machine rolled on. Lower courts increasingly were forced to confront the difficult questions regarding the contours of the cause of action. And that led to the Kiobel decision, which unanimously rejected the application of the ATS in one of the paradigmatic situations in which it has been invoked.

Human rights advocates now face a choice. They can try to parse the majority opinion and Justice Kennedy's concurrence to argue that some category of ATS claims can be based on conduct outside our borders. If they succeed in that difficult task, they will still face daunting battles on other issues—aiding-and-abetting, exhaustion, comity, etc.—that courts will be obligated to address.

Or they can decide instead to promote protection of human rights in other ways.

While the ATS litigation process has unfolded, Congress has enacted two express causes of action addressing international law violations—in the Torture Victims Protection Act and the Anti-Terrorism Act. Perhaps the legislative remedies would have been broader if advocates had focused more of their attention on that forum. And modern communications media provide new means of pressuring corporations and governments, and of collecting broad-based support, that can be much more effective than litigation in promoting the sorts of change that human rights advocates claim to seek.

It can be difficult for lawyers to admit that litigation is not the best way to solve all the world's ills. But often it is not. Human rights advocates would do well to consider alternative approaches rather than continuing to devote resources to litigation virtually certain to lead to a dead end.

Reprinted with permission from the April 29, 2013 edition of The Litigation Daily © 2013 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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