Access to Justice

by Jeremy Leaming

In another victory for corporate interests, the U.S. Supreme Court limited the scope of a 224-year-old law used by human rights groups and lawyers to sue corporations over human rights violations committed overseas.

The case involved a lawsuit leveled against Royal Dutch Petroleum, which owns Shell Oil, alleging that the company was complicit in the murder and torture of Nigerians opposed to the company’s exploration of the Niger Delta and thereby in violation of the law of nations. The Nigerian government executed many of the activists -- and their families, represented by human rights lawyers, lodged a lawsuit in federal court pursuant to the Alien Tort Statute (ATS). The 1789 federal law states that federal courts can 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.”

In Kiobel v. Royal Dutch Petroleum, Chief Justice John Roberts Jr. asked the parties to address, “Whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

The question is not, Roberts wrote in the majority opinion, “whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign.”

Roberts, joined by the high court’s other conservatives, maintained that the ATS “covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach – such violations affecting aliens can occur either within or outside the United States.”

The Court’s conservatives concluded the ATS does not reach extraterritoriality claims, in this case.

“On these facts, all the relevant conduct took place outside the United States,” Roberts wrote. “And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.”

The high court’s left-of-center justices “believed that the statute could still be used in some cases,” Robert Barnes reported for The Washington Post.

Justice Stephen G. Breyer, Barnes highlighted, wrote that the ATS should reach conduct by corporations overseas that “substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”

by Jeremy Leaming

The U.S. Supreme Court that issued the opinion in Gideon v. Wainwright finding that criminal defendants have a constitutional right to counsel even if they cannot pay for it was a high court unwavering in its efforts to ensure that equal protection under the law applied even to the powerless and marginalized.

Today’s Supreme Court, said UNC Law School Professor Gene Nichol at a recent symposium at Harvard Law School, is very different and in many respects reflects the nation’s treatment broadly of people in poverty. The present high court’s proclivity, Nichol said, is to intervene as the “sword-carrier, and lieutenant and hand-maiden, and aide-de-camp of the powerful and economically privileged."

Nichol, speaking at a symposium on Gideon and on the need to extend more legal services to civil litigants hosted by the Harvard Law & Policy Review and ACS, gave a broad and damning assessment of the way the legal system separates the poor from everyone else.

Fifty years ago, the Supreme Court led by Justice Hugo Black held in Gideon that “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” This right applied to the states Black concluded in part because of the Fourteenth Amendments requirement that government not deprive people of liberty.

“The Gideon decision’s obvious truth – disturbing, challenging, indicting, and still obvious in truth: ‘The right to be heard would be of little avail if it did not include the right to be heard by counsel. Even the educated and intelligent layman has small and sometimes no skill in the science of law. He in incapable of determining whether the case against him is good or bad, he’s unfamiliar with the rules of evidence, he lacks the skill and knowledge to prepare his defense though he might have a perfect one. He requires the guiding hand of counsel at every step of the proceeding.’”

Nichol said Justice Black’s wording reminded him of the mantra spoken by his friend, the late Sen. Paul Wellstone that, “It is important not to separate the lives we lead from the words we speak.”

The professor then turned to what he described as one most searing defects of the nation’s legal system, the treatment of poor litigants.

“Millions of poor litigants … are denied every day in every court, in every court system, in every state at every level of this broad nation, a foundational right to a meaningful hearing, at a meaningful time before forfeiting constitutionally secured interests. The largest single defect of the American system of justice; making mockery of the phrases etched on our courthouse walls, providing the great American asterisk, the delegitimizing asterisk: Equal justice for those alone who can pay the ride of significant fare” requiring “an annotation of our boastful pledge – Liberty and Justice for half. That is too generous, I know.”