1
00:00:00,040 --> 00:00:03,720
Speaker 1: The Supreme Court heard arguments this morning over whether corporations

2
00:00:03,760 --> 00:00:06,480
Speaker 1: can be sued in the US for human rights abuses

3
00:00:06,519 --> 00:00:10,400
Speaker 1: committed overseas. It centers around a two year old law

4
00:00:10,480 --> 00:00:14,159
Speaker 1: called the Alien Tort Statute. The Justice Is hinted they

5
00:00:14,200 --> 00:00:19,080
Speaker 1: made bar victims of overseas atrocities from suing corporations for complicity.

6
00:00:19,600 --> 00:00:22,720
Speaker 1: The case involves alleged wrongdoing in New York. Victims of

7
00:00:22,760 --> 00:00:26,960
Speaker 1: attacks over ten years in Israel and the Palestinian territories

8
00:00:26,960 --> 00:00:30,800
Speaker 1: say Arab Banks New York Branch distributed millions of dollars

9
00:00:30,800 --> 00:00:34,680
Speaker 1: to terrorists and their families. Our guests are Stephen Vladdock,

10
00:00:34,840 --> 00:00:38,199
Speaker 1: professor at the University of Texas Law School, and Julian

11
00:00:38,280 --> 00:00:42,440
Speaker 1: coup Are, professor at Hostile Law School. Stephen, the Court

12
00:00:42,479 --> 00:00:47,040
Speaker 1: agreed to decide this issue of corporate liability in twenty eleven.

13
00:00:47,200 --> 00:00:52,559
Speaker 1: What happened at that point in a case called Kobo

14
00:00:52,720 --> 00:00:56,600
Speaker 1: versus Royal Dutch Petroleum. After the Court actually had granted

15
00:00:56,600 --> 00:00:59,560
Speaker 1: sartiari and heard argument on the same question and heard

16
00:00:59,600 --> 00:01:02,160
Speaker 1: this morning in the Justice Is actually set the case

17
00:01:02,240 --> 00:01:06,720
Speaker 1: for reargument on the separate question of when this statute,

18
00:01:06,800 --> 00:01:09,800
Speaker 1: the Alien Towards Statute can be used to bring suit

19
00:01:09,920 --> 00:01:13,279
Speaker 1: for human rights violations that occur outside the United States.

20
00:01:13,280 --> 00:01:16,520
Speaker 1: That is to say, when does the statute apply extra territorially?

21
00:01:17,000 --> 00:01:21,360
Speaker 1: In the Kyobal decision in the court said not that often, um,

22
00:01:21,520 --> 00:01:24,920
Speaker 1: almost never um, and so that it duck the question

23
00:01:24,920 --> 00:01:28,120
Speaker 1: of corporate liability. The case is now back because a

24
00:01:28,200 --> 00:01:32,240
Speaker 1: couple of lower courts have found some circumstances where it's

25
00:01:32,280 --> 00:01:36,399
Speaker 1: still possible to bring extra territorial alien towards statute claims,

26
00:01:36,480 --> 00:01:38,959
Speaker 1: and so the question the court avoided five years ago

27
00:01:39,319 --> 00:01:43,840
Speaker 1: has returned to the foil now in the Jessner case, So, Julian,

28
00:01:44,040 --> 00:01:46,840
Speaker 1: the court seems to have been trending in a direction

29
00:01:47,240 --> 00:01:52,360
Speaker 1: that was more favorable for corporations. What's the argument that

30
00:01:52,440 --> 00:01:55,760
Speaker 1: the other side is making the corporations should be liable

31
00:01:55,760 --> 00:01:58,560
Speaker 1: in these circumstances. Well, I think the other side of

32
00:01:58,560 --> 00:02:02,160
Speaker 1: thinking the argument that when you uh, this statute doesn't

33
00:02:02,160 --> 00:02:05,360
Speaker 1: say a thing about individuals and corporations just as you

34
00:02:05,400 --> 00:02:07,400
Speaker 1: have a right to sue, and it doesn't distinguish. And

35
00:02:07,440 --> 00:02:09,760
Speaker 1: so the argument of the planets are really making, it's

36
00:02:09,840 --> 00:02:13,400
Speaker 1: why should corporation is any different from individual people who

37
00:02:13,480 --> 00:02:16,760
Speaker 1: can definitely be held liable for these sorts of violations

38
00:02:16,760 --> 00:02:18,760
Speaker 1: in the U s. Courts, And so the question the

39
00:02:18,760 --> 00:02:22,120
Speaker 1: Planets are saying, well, corporations should be just as liable

40
00:02:22,160 --> 00:02:24,679
Speaker 1: as an individual person would be if you're sued under

41
00:02:24,720 --> 00:02:27,880
Speaker 1: this statute. So it doesn't really matter whether services or not,

42
00:02:27,919 --> 00:02:29,320
Speaker 1: as long as you have enough of the connection to

43
00:02:29,440 --> 00:02:32,359
Speaker 1: us their arguments corporations that people should be treated the same,

44
00:02:33,560 --> 00:02:36,120
Speaker 1: and Steve, what's the argument on the other side. So

45
00:02:36,160 --> 00:02:38,160
Speaker 1: the argument on the other side is that um, just

46
00:02:38,400 --> 00:02:41,679
Speaker 1: as the Supreme Court has said that the alien toward

47
00:02:41,760 --> 00:02:45,640
Speaker 1: statute should not be available unless the underlying claim is

48
00:02:45,720 --> 00:02:50,239
Speaker 1: based on some widespread consensus norm of international human rights law,

49
00:02:50,720 --> 00:02:54,640
Speaker 1: so to theories of liability, including who can be liable

50
00:02:54,680 --> 00:02:57,919
Speaker 1: for human rights violations, should not be available unless they

51
00:02:58,040 --> 00:03:01,840
Speaker 1: too have similar support in the international community. UM, and

52
00:03:01,880 --> 00:03:03,720
Speaker 1: I don't think it will surprise books that there's not

53
00:03:04,120 --> 00:03:08,880
Speaker 1: um necessarily widespread consensus within the international community about the

54
00:03:08,919 --> 00:03:13,079
Speaker 1: circumstances in which corporations can and should be liable. If anything,

55
00:03:13,120 --> 00:03:15,560
Speaker 1: in the United States is a country in which there

56
00:03:15,560 --> 00:03:18,520
Speaker 1: tends to be more corporate liability than is true in

57
00:03:18,560 --> 00:03:23,040
Speaker 1: many of our friends and fellow sovereigns. Overseas. So Julian,

58
00:03:23,600 --> 00:03:26,399
Speaker 1: how did things play out in court today? What? What

59
00:03:26,560 --> 00:03:29,720
Speaker 1: was what was the line of questioning that the sides faced.

60
00:03:30,240 --> 00:03:32,040
Speaker 1: So I think what was interesting about the case. I

61
00:03:32,040 --> 00:03:34,800
Speaker 1: looked at the argument this morning, and so I think

62
00:03:34,800 --> 00:03:37,840
Speaker 1: that there a lot of focuses on the foreignulations impact

63
00:03:38,040 --> 00:03:40,680
Speaker 1: of allowing the search of lawsuits, and the US government

64
00:03:40,720 --> 00:03:43,560
Speaker 1: also had a representatives making an argument there as well

65
00:03:43,600 --> 00:03:47,440
Speaker 1: about um there was a foreignulations impacts. But the court

66
00:03:47,440 --> 00:03:49,360
Speaker 1: was starting to struggle with well, because it always was

67
00:03:49,400 --> 00:03:53,080
Speaker 1: there always a foreignulations problem. If you allow see against corporations,

68
00:03:53,120 --> 00:03:56,200
Speaker 1: would it really affect a bit diplomatic friction we would have?

69
00:03:56,280 --> 00:03:59,840
Speaker 1: So there was a lot of energy spent considering whether

70
00:04:00,080 --> 00:04:03,840
Speaker 1: not allowing seats against corporations would cause more or less

71
00:04:04,400 --> 00:04:06,560
Speaker 1: or have any serious effect on the type of diplomatic

72
00:04:06,640 --> 00:04:09,520
Speaker 1: problems caused by these search of losses, because foreign countries

73
00:04:09,560 --> 00:04:13,920
Speaker 1: are always typically involved in these sorts of cases. In

74
00:04:13,920 --> 00:04:17,400
Speaker 1: this case, the defendant air Bank is a major bank

75
00:04:17,440 --> 00:04:19,800
Speaker 1: in Jordan's and you know, the government Jordan's starying happy

76
00:04:19,800 --> 00:04:22,440
Speaker 1: about this whole process, So there's always going to be

77
00:04:22,480 --> 00:04:25,000
Speaker 1: foreign affairs. In fact, they did sort of focus on

78
00:04:25,040 --> 00:04:26,920
Speaker 1: the issue and try to think about what the best

79
00:04:26,920 --> 00:04:29,120
Speaker 1: way to interpret the statute is to try to minimize

80
00:04:29,120 --> 00:04:34,280
Speaker 1: these problems with foreign countries. Stephen, it appeared that it

81
00:04:34,440 --> 00:04:40,120
Speaker 1: was split between the liberal justices and the conservative justices.

82
00:04:40,200 --> 00:04:43,480
Speaker 1: Why would a case like this split the court that way?

83
00:04:43,520 --> 00:04:47,760
Speaker 1: And about a minute and then we'll go we'll go

84
00:04:47,839 --> 00:04:51,120
Speaker 1: back to it. So, I mean, the short version is

85
00:04:51,160 --> 00:04:54,120
Speaker 1: that there is a long run in disagreement between the

86
00:04:54,160 --> 00:04:57,520
Speaker 1: more conservative and the more liberal justices, not just with

87
00:04:57,520 --> 00:04:59,480
Speaker 1: regard to human rights claims, but with regard to a

88
00:04:59,520 --> 00:05:03,320
Speaker 1: whole universe of claims about when the federal courts should

89
00:05:03,360 --> 00:05:07,200
Speaker 1: be implying and fashion and remedies that Congress has not

90
00:05:07,240 --> 00:05:11,120
Speaker 1: provided expressly. In one very important respect, it is that

91
00:05:11,240 --> 00:05:14,440
Speaker 1: fight that is at the heart of the Alien Towards Statute,

92
00:05:14,640 --> 00:05:19,159
Speaker 1: where you have this one sentence, cryptic statue from that's

93
00:05:19,200 --> 00:05:22,400
Speaker 1: being used today to prosecute human rights violations all over

94
00:05:22,440 --> 00:05:26,040
Speaker 1: the world. So it's that same political divide about exactly

95
00:05:26,040 --> 00:05:29,440
Speaker 1: how much authority judges should have to recognize remedies that

96
00:05:29,480 --> 00:05:32,679
Speaker 1: Congress has not made express We've been talking to Stephen Vladick,

97
00:05:32,760 --> 00:05:36,480
Speaker 1: professor at the University of Texas Law School and Julian Cooper,

98
00:05:36,480 --> 00:05:40,400
Speaker 1: professor at Hospital Law School, about Supreme Court arguments this

99
00:05:40,440 --> 00:05:43,839
Speaker 1: morning over whether corporations can be sued in the US

100
00:05:43,880 --> 00:05:47,960
Speaker 1: for human rights abuses committed overseas. Julian, you were in

101
00:05:48,000 --> 00:05:51,760
Speaker 1: the courtroom during the oral arguments. Can you tell us

102
00:05:52,040 --> 00:05:57,640
Speaker 1: which of the justices was most engaged in the argument? Well,

103
00:05:57,640 --> 00:06:00,479
Speaker 1: it's the most interesting one was Justice Courses, the new

104
00:06:00,680 --> 00:06:03,160
Speaker 1: the newest justice who hasn't really written or spoken about

105
00:06:03,160 --> 00:06:05,839
Speaker 1: this topic, and he really was really engaged, and he

106
00:06:05,880 --> 00:06:09,640
Speaker 1: had a completely different approach to the statute that was

107
00:06:09,880 --> 00:06:12,360
Speaker 1: that he wanted to sort of explore UM. And this

108
00:06:12,520 --> 00:06:15,120
Speaker 1: was really kind of unusual approach that I think would

109
00:06:15,160 --> 00:06:17,840
Speaker 1: really be radical change in the Dirk strudence of the

110
00:06:18,120 --> 00:06:21,120
Speaker 1: UM would also favor the corporations, but for different reasons.

111
00:06:21,160 --> 00:06:22,560
Speaker 1: So I thought that was very interesting that he was

112
00:06:22,640 --> 00:06:25,560
Speaker 1: very engaged. Would you explain a little bit about what

113
00:06:25,800 --> 00:06:30,080
Speaker 1: his view is that we should read the statute. Obviously

114
00:06:30,080 --> 00:06:33,800
Speaker 1: suggested we should read the statute to be about the

115
00:06:33,920 --> 00:06:37,839
Speaker 1: situations where the United States government is its own sort

116
00:06:37,880 --> 00:06:40,920
Speaker 1: of responsibility is at stake, not cases not involving any

117
00:06:40,960 --> 00:06:44,200
Speaker 1: sort of US government for U S nationals. So he

118
00:06:44,279 --> 00:06:46,359
Speaker 1: really thinks it's caseoud be about things that have a

119
00:06:46,440 --> 00:06:49,000
Speaker 1: tighter connection to the United States. In this case, he says,

120
00:06:49,040 --> 00:06:51,719
Speaker 1: for instance, would have foreigners in a foreign country, there's

121
00:06:51,760 --> 00:06:54,200
Speaker 1: no relationship. And not only that, there's you know, there

122
00:06:54,279 --> 00:06:57,320
Speaker 1: needs to be some sort of America a tighter relationship

123
00:06:57,400 --> 00:06:59,880
Speaker 1: for you, um than was in this type of case.

124
00:07:00,160 --> 00:07:02,440
Speaker 1: And so is the Course. I think you have very

125
00:07:02,520 --> 00:07:04,719
Speaker 1: sort of strong and historical grounds, but it's really different

126
00:07:04,760 --> 00:07:07,400
Speaker 1: from the approach the Court has taken in their previous

127
00:07:07,440 --> 00:07:10,760
Speaker 1: two decisions. Well, Steve, this is a statute, isn't it

128
00:07:10,800 --> 00:07:15,239
Speaker 1: that seems to have uh, you know, reach all across

129
00:07:15,280 --> 00:07:18,240
Speaker 1: the globe, and which seems a little different than what

130
00:07:18,360 --> 00:07:21,200
Speaker 1: Justice Course is arguing. Yeah, I mean, I think the

131
00:07:21,400 --> 00:07:23,160
Speaker 1: you know, in some way it's part of what I

132
00:07:23,400 --> 00:07:26,200
Speaker 1: think we saw this morning, and we'll see whenever the

133
00:07:26,240 --> 00:07:30,840
Speaker 1: opinion comes out, is some relitigation of the two prior

134
00:07:31,160 --> 00:07:34,480
Speaker 1: major Supreme Court decisions about the statue. The Soci case

135
00:07:34,520 --> 00:07:36,840
Speaker 1: from two thousand and four, which I think, for the

136
00:07:36,840 --> 00:07:42,680
Speaker 1: surprise of many, actually deeply um invigorated the notion that

137
00:07:42,760 --> 00:07:47,800
Speaker 1: the statute allows for um widespread litigation of human rights claims,

138
00:07:47,840 --> 00:07:50,760
Speaker 1: and the Kyobal decision in twelve, which makes it much

139
00:07:50,800 --> 00:07:53,360
Speaker 1: harder to litigate those claims when all the relevant facts

140
00:07:53,600 --> 00:07:56,480
Speaker 1: took place outside the United States. You know, corporate liability

141
00:07:56,600 --> 00:08:00,160
Speaker 1: is in some respects a bit of a distraction. What

142
00:08:00,240 --> 00:08:04,320
Speaker 1: really is the more important question of what kinds of

143
00:08:04,360 --> 00:08:08,760
Speaker 1: cases insofar as where they occur should the statute encompass.

144
00:08:08,760 --> 00:08:11,400
Speaker 1: There's actually know as as as as the parties all

145
00:08:11,440 --> 00:08:14,720
Speaker 1: briefed in this case, there's now a five way circuit

146
00:08:14,760 --> 00:08:18,960
Speaker 1: split on the question of when a human rights violation

147
00:08:19,040 --> 00:08:22,280
Speaker 1: overseas can be invoked, who can be sued under the

148
00:08:22,280 --> 00:08:25,840
Speaker 1: Alien Towards Statute Um. The Supreme Court just last Monday

149
00:08:26,600 --> 00:08:30,560
Speaker 1: denied sir ferrari in case out of Texas. That actually

150
00:08:30,560 --> 00:08:32,400
Speaker 1: gave it a chance to resolve that sort could split.

151
00:08:32,720 --> 00:08:35,000
Speaker 1: I actually think that's the main attraction here in Corporate

152
00:08:35,040 --> 00:08:38,960
Speaker 1: liability may very well end up being a sideshow. Julian,

153
00:08:39,080 --> 00:08:44,760
Speaker 1: which of the so called liberal justices was asking questions

154
00:08:44,800 --> 00:08:50,040
Speaker 1: that indicated that the corporations should not be immune? You know,

155
00:08:50,040 --> 00:08:53,800
Speaker 1: I think Justice kagan Um and Justice suddenly worked with

156
00:08:54,559 --> 00:08:57,880
Speaker 1: suggested telegraph to your questions that they're pretty they didn't

157
00:08:57,880 --> 00:08:59,680
Speaker 1: really have a great they didn't really buy the argument

158
00:08:59,720 --> 00:09:02,800
Speaker 1: of cork lations should be treated differently um than individuals,

159
00:09:02,840 --> 00:09:05,880
Speaker 1: And it's very pretty tough questioning. And Justice Broder as well,

160
00:09:06,000 --> 00:09:08,160
Speaker 1: they left the justice bar. Actually it's a little bit unfense.

161
00:09:08,240 --> 00:09:11,520
Speaker 1: I think this question suggested he was somewhat sympathetic to

162
00:09:11,600 --> 00:09:15,960
Speaker 1: the corporation's position of productrinal reasons. So those are the

163
00:09:16,000 --> 00:09:19,319
Speaker 1: ones that seems most engaged in. And Justice Ginsburg also

164
00:09:19,760 --> 00:09:21,880
Speaker 1: asked a few questions, but she was not didn't seem

165
00:09:21,960 --> 00:09:25,000
Speaker 1: quite as much engaged as the other three. Steve, when

166
00:09:25,040 --> 00:09:29,319
Speaker 1: you describe, um, the two thousand four decision, which sort

167
00:09:29,360 --> 00:09:32,000
Speaker 1: of invigorated the statute, as you said, and then the

168
00:09:32,040 --> 00:09:35,839
Speaker 1: two thous you know that the later decision that cut

169
00:09:35,840 --> 00:09:39,040
Speaker 1: back on liability, do you think the courts sort of

170
00:09:40,200 --> 00:09:43,360
Speaker 1: a majority of it anyway regrets having invitigorated the statute

171
00:09:43,360 --> 00:09:45,000
Speaker 1: that much is going to kind of chip away at

172
00:09:45,040 --> 00:09:47,079
Speaker 1: it um. You know, I think that's the right question,

173
00:09:47,160 --> 00:09:49,040
Speaker 1: my call. I think it's the answer is maybe a

174
00:09:49,040 --> 00:09:50,600
Speaker 1: little bit yes, a little bit no. I think part

175
00:09:50,640 --> 00:09:53,080
Speaker 1: of the problem is that, you know, I don't think

176
00:09:53,240 --> 00:09:57,800
Speaker 1: Justice Kennedy in particular wants to completely close the courthouse

177
00:09:57,880 --> 00:10:01,600
Speaker 1: doors to all human it's violations except for those that

178
00:10:01,640 --> 00:10:04,600
Speaker 1: just happen to take place on US soil. And so

179
00:10:04,640 --> 00:10:07,040
Speaker 1: I think what we saw in those earlier decisions Sosa

180
00:10:07,120 --> 00:10:10,839
Speaker 1: and Kobol was an effort on Justice Kennedy's part, in particular,

181
00:10:11,200 --> 00:10:13,480
Speaker 1: to sort of split the difference, to open the courthouse

182
00:10:13,480 --> 00:10:16,840
Speaker 1: doors to especially egregious claims, but then to require that

183
00:10:16,880 --> 00:10:21,559
Speaker 1: those claims not just be sort of accidentally in U. S. Courts. Um.

184
00:10:21,600 --> 00:10:24,760
Speaker 1: If that's the real tension, I don't know why corporate

185
00:10:24,800 --> 00:10:27,400
Speaker 1: liability really, you know, has a big impact one way

186
00:10:27,440 --> 00:10:29,200
Speaker 1: or the other. That may have a lot to say

187
00:10:29,200 --> 00:10:31,800
Speaker 1: about why today's argument was so much more about the

188
00:10:31,840 --> 00:10:35,440
Speaker 1: impact on foreign policy um, as opposed to the sort

189
00:10:35,480 --> 00:10:37,680
Speaker 1: of concerns that led the Court to the Kyoble decision

190
00:10:37,679 --> 00:10:40,280
Speaker 1: back in twelve. Um. You know, I think the Court

191
00:10:40,360 --> 00:10:42,000
Speaker 1: wants to be able to have its kick and eat

192
00:10:42,040 --> 00:10:45,440
Speaker 1: it too, And that's why I think the territoriality question,

193
00:10:45,520 --> 00:10:48,960
Speaker 1: when can you use the statute to challenge things that

194
00:10:49,000 --> 00:10:52,120
Speaker 1: happened overseas is so much more of a significant piece

195
00:10:52,120 --> 00:10:55,280
Speaker 1: of this puzzle than corporate liability. Now, of course, if

196
00:10:55,280 --> 00:10:58,920
Speaker 1: the Court says no corporate liability ever, um, that will

197
00:10:58,960 --> 00:11:01,080
Speaker 1: probably you know, ren nder the statute all but a

198
00:11:01,080 --> 00:11:03,319
Speaker 1: dead letter. It's very rare that you're going to go

199
00:11:03,360 --> 00:11:06,199
Speaker 1: after an individual person under the statute um. But I

200
00:11:06,200 --> 00:11:08,000
Speaker 1: don't think they're going to. And I think we're gonna

201
00:11:08,040 --> 00:11:10,720
Speaker 1: come back to the sort of calibration of claims where

202
00:11:11,000 --> 00:11:13,319
Speaker 1: you know, some connection to the US is all that's required,

203
00:11:13,679 --> 00:11:16,160
Speaker 1: but that's you know, that's what you're gonna need. Julian

204
00:11:16,240 --> 00:11:19,520
Speaker 1: about thirty seconds here, do you think they're likely the

205
00:11:19,520 --> 00:11:24,079
Speaker 1: majority opinion to be a limited opinion as limited as possible?

206
00:11:24,679 --> 00:11:27,319
Speaker 1: I think actually my reading is that therefore justices who

207
00:11:27,320 --> 00:11:31,520
Speaker 1: would support holding corporations are not allowing corporations suit. So

208
00:11:31,760 --> 00:11:33,760
Speaker 1: just turning on Justice Kennedy, so I can see a

209
00:11:33,800 --> 00:11:36,840
Speaker 1: split opening here, it'll be very close in sight. I think.

210
00:11:37,800 --> 00:11:40,520
Speaker 1: I think we've heard about Justice Kennedy and just about

211
00:11:40,559 --> 00:11:44,240
Speaker 1: every case that we've discussed so far in this beginning

212
00:11:44,240 --> 00:11:45,760
Speaker 1: of the term. I want to thank you both for

213
00:11:45,840 --> 00:11:49,280
Speaker 1: being on Bloomberg Law. That's Julian Coo, he's a professor

214
00:11:49,320 --> 00:11:52,199
Speaker 1: at Hostel Law School, and Stephen Vladdock, he's a professor

215
00:11:52,200 --> 00:11:54,280
Speaker 1: at the University of Texas Law School.