corporate personhood

By John Knox, a law professor at Wake Forest University School of Law and a member scholar at the Center for Progressive Reform. This commentary is cross-posted at CPRBlog.

On February 28, the Supreme Court will hear argument in Kiobel v Royal Dutch Petroleum, a case with far-reaching implications for efforts to hold corporations accountable when they commit or are complicit in abuses of human rights. 

For over fifty years, Shell has extracted oil from Nigeria, causing great harm to the environment and people of the Niger delta. The Ogoni people living in the delta protested Shell’s operations, and in response the Nigerian government harshly oppressed them. Most infamously, in 1995 it executed the author Ken Saro-Wiwa, together with eight other leaders of the protests.     

Esther Kiobel, the widow of one of the executed men, as well as other affected Ogoni, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law. The plaintiffs relied on the Alien Tort Statute (ATS), a law enacted by the First Congress, in 1789, which gives federal courts jurisdiction over claims by aliens arising from torts committed in violation of international law. In 2004, in Sosa v Alvarez-Machain, the Supreme Court affirmed that the ATS still provides jurisdiction for international tort claims, but it cautioned federal courts not to recognize claims “for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms” familiar when the law was enacted. As an example of such a historical paradigm, the Court cited the long-standing prohibition against piracy. 

Foreign plaintiffs have used the ATS to accuse corporations of committing grave human rights abuses, including genocide, war crimes, and forced labor.  A few of the suits have resulted in payments, including a 2009 settlement by Shell of another claim arising from its Nigerian operations. In 2010, however, the Second Circuit Court of Appeals rejected Esther Kiobel’s claim on the sweeping ground that corporations could never be liable for violations of customary international law, because customary international law never imposes any obligations on corporations. In short order, the Seventh, Ninth, and D.C. Circuits rejected the Second Circuit decision, holding that plaintiffs can sue corporations under the Alien Tort Statute. 

Last fall, the Supreme Court granted certiorari to review the Second Circuit decision. Its ruling will be its first ATS decision since Sosa, and it will determine whether the many other pending ATS suits against corporations may continue. It’s possible that the Court will decide the case on grounds that allow it to avoid addressing corporate duties under international law. But if the Supreme Court does take on international law, as seems likely, what should it decide? Is the Second Circuit correct that international norms do not prohibit corporate abuses of human rights? 

by John Schachter

Stephen Colbert gave new meaning to “Justice delayed is justice denied” when he interviewed a surprisingly game former Supreme Court Justice John Paul Stevens. Colbert apparently didn’t realize (wink, wink) that Stevens had retired from the high court but reluctantly forges ahead with the interview nonetheless.

The meat of the interview was a discussion of the court’s controversial Citizens United decision, coming up on its two-year anniversary. While Colbert insisted that corporations are exactly like people and deserving of all the same rights, Stevens parried quite effectively. “As with natural persons as well as corporate persons, some have different rights than others do,” Stevens explained. “The same rights don’t apply to everyone in every possible situation.”

At 91 years, Stevens makes 90-years old Hollywood star Betty White seem old by comparison. His quick wit and sharp legal mind were on full display during the nearly 7-minute interview. The highlight? Colbert asked Stevens if there were any decisions he made that he later regretted. Said Stevens in response, “Other than this interview? I don’t think so.”