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Thursday, April 11, 2013

I See You and Raise You, Mr. Chief Justice

I began arguing Tuesday that the state of corporate liability for overseas human rights violations is not as bleak as we think.  We tend to associate it almost exclusively with the ATS, and fear that its fate hangs in the Kiobel balance.  But I’m not so sure.  Certainly, the ATS has had, and will have, tremendous significance in the development of global human rights law.  But if we’re thinking about US laws with the proven ability to create a global culture of corporate compliance, we should probably not start with the ATS.  

Last year, Chief Justice Roberts famously criticized us academics for failing to be relevant.  And by relevant, he meant to the bar and bench.  But it seems to me that the Chief Justice neglected to mention a third, and arguably more important, group:  the very persons whom the law seeks to govern.  Are we certain, Mr. Chief Justice, that granting a writ of certiorari guarantees an issue’s relevance?

I’m not sure the ATS ever quite succeeded in instilling fear in the hearts of multinational corporations.  Though we -- the readers of this blog -- are by and large interested in the outcome of Kiobel, I’m not sure that very many GCs are.  That is, I would not expect  many companies to significantly alter their behavior in response to Kiobel, regardless of its content.  Other things may change, but broad-based corporate conduct likely will not.  

So if we want to talk about really constraining overseas corporate rights violations, I think the conversation needs to begin elsewhere.  I think the cornerstone of our federal statutory regime for holding corporations liable for human rights abuses actually lies in a different statute altogether, one that ATS followers probably don’t think about much, but which has likely been more effective in deterring corporate abuses than the ATS ever was and, after Kiobel, ever will be.  

But if I told you now what it is, you wouldn’t believe me.  Trust me, it will take some persuading.  So I’ll save it for next week.  Or, you can take a look at this paper.  

See you Monday.

Posted by Andy Spalding on April 11, 2013 at 12:06 PM | Permalink


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