Eat your cake but you shouldn’t be able to have it, too.

Eat your cake but you shouldn’t be able to have it, too.

Dewey, Cheatem, & Howe. P.C. (“Dewey”) is a Dutch based professional corporation, pictured above, that helps Somalia pirates rob and steal from you, a Nigerian citizen, on the high seas. The U.S. Supreme Court heard oral arguments on Tuesday in Kiobel v. Royal Dutch Pertroleum Company to determine whether you would be able to sue Dewey in the United States under the Alien Tort Statute (“ATS”) even though Dewey is a corporation. Given that corporations are considered “persons” for First Amendment purposes, companies should also be considered persons subject to suit under ATS. Otherwise, the lawyers at Dewey — Curly, Moe, and Larry — would be free to aid and abet the pirates, while none of them alone would be able to.

In Kiobel, 12 Nigerian citizens sued Royal Dutch Petroleum (“Royal Dutch”) under the ATS in U.S. federal court for allegedly aiding and abetting human rights violations by the Abacha dictatorship in Nigeria. The ATS, passed in 1789, 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.” The issue in the case is whether Royal Dutch may be sued even though it is a company and not a natural person. The law to date has only included natural persons within the scope of the ATS, which only defines who may sue but not who may be sued.

The opposing sides have arguments that are not supported by the text of the statute. Royal Dutch’s appellate lawyer, Kathleen Sullivan, argued to the Court that “[t]here is no country in the world that provides a civil cause of action against a corporation under their domestic law for a violation of the of nations,” reports The New York Times in Court Debates Rights Case Aimed at Corporations. Instead, she claims that “every convention for every international tribune excludes corporations.” The deputy solicitor general, Edwin S. Kneedler, argues on behalf of the plaintiffs that there need not to be a constraint on who may or may not be sued under the ATS because it “does not identify who the defendant may be.”

Regardless of what other countries do or the absence of textual guidance in the ATS, the Supreme Court recently reaffirmed its position that corporations are “persons” within the meaning of the First Amendment in Citizens United v. Federal Election Commissions. If Dewey were a professional corporation based in New York, it would have just as much protection under the First Amendment as you do. Given that this is the law of the land, it seems intellectually disingenuous to count corporations beyond the scope of the ATS as a matter of law but within the scope of the First Amendment. It seems a better approach would be to allow suits against companies like Dewey or Royal Dutch under the ATS but then potentially dismiss the suit for other reasons, including no violation of the law of nations or a treaty of the United States, until Congress hopefully amends the ATS to make it clearer.


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