Will Jesner Signal a Retreat from Corporate Accountability?

by Jeffrey S. Vogt, Legal Director, Solidarity Center

Since the modern “rediscovery” of the Alien Tort Statute (ATS), starting with Filártiga v. Peña-Irala in 1980, corporations have been named as defendants in ATS cases. That corporations could be held liable under the ATS for jus cogens violations of customary international law had for years generated little controversy. In 1997, in Doe v. Unocal Corp, the first major ATS case against a corporation, the question as to whether corporations, as opposed to natural persons, could be held liable under ATS was not at issue. By 2008, the 11th Circuit Court of Appeals, in Romero v. Drummond Company, could quickly dispense with the issue holding that, “The text of the Alien Tort Statute provides no express exception for corporations[.]” This acceptance came to a halt when in 2010, the Second Circuit Court of Appeals, in Kiobel v. Royal Dutch Shell, held that corporations could not be held liable under the ATS because corporate liability was not sufficiently developed under customary international law (as opposed to US law). The US Supreme Court avoided addressing the issue when Kiobel was before it in 2013, instead finding a lack of jurisdiction over the Dutch, corporate defendant due to a presumption against extraterritoriality. Notably, not all courts followed Kiobel; the Seventh Circuit, in the 2011 case of Flomo v. Firestone National Rubber Company, kept the doors open to corporate ATS cases.  

The question of corporate liability is now squarely before the US Supreme Court in the case of Jesner v. Arab Bank, PLC. I do not here examine the merits of Kiobel or Jesner, as many have already commented elsewhere. Rather, I argue that a ruling that finds the ATS does not support jurisdiction over corporations for human rights violations abroad would be out of step with the practices of many other countries, which have no difficulty in holding corporations liable. Further, recent developments in international law require states to provide victims of human rights violations with a remedy in domestic courts.

For example, in the UK, Peruvian citizens sued UK mining company Monterrico Metals PLC in London for serious abuses they suffered while held captive on company property following a protest at the mine site. In Canada, Guatemalan citizens filed tort claims against a Canadian mining company HudBay Minerals Inc. in Ontario in 2010-11 for the murder of an indigenous community leader and the wounding of another by the company’s security personnel in El Estor, Guatemala. The case is still proceeding, but the corporate nature of the defendant has not been raised as an issue. In Germany, relatives of the victims of a deadly garment factory fire in Pakistan filed a claim against German retailer KiK in Dortmund in 2015. Kik had sourced denim goods from the Ali Enterprises factory, where the exit doors prevented workers from fleeing the electrical fire, leading to the death of over 260 workers. The court accepted jurisdiction and granted legal aid to the plaintiffs to cover their costs of litigation. And in France, in 2015, a criminal complaint was filed against French construction giant Vinci for trafficking/forced labor of migrant workers on projects in Qatar. Indeed, in the EU, the so-called Brussels I Regulation provides that member states’ courts have jurisdiction to hear human rights claims against corporations based in the EU, even where the victims are not from an EU member state and the harms took place outside of the EU. These cases constitute only a small sample of the human rights cases filed against corporate defendants where the corporate form presents no question as to potential liability.

Further, some states, including France and the Netherlands, have recently enacted laws imposing liability on corporations for human rights violations which occur in their supply chains. In 2017, France enacted a law which requires major French companies to adopt vigilance plans and opens those companies to civil liability should human rights harms nevertheless occur. The Dutch legislation, also enacted in 2017, imposes on corporations a legally enforceable duty of care to eliminate child labor in their supply chains.

The opinion of UN treaty bodies likewise holds that states must regulate corporations, including for human rights harms perpetrated abroad. The UN Committee on Economic, Social and Cultural Rights, in its 2011 “Statement on the obligations of States Parties regarding the corporate sector and economic, social and cultural rights,” explained that, “States Parties should also take steps to prevent human rights contraventions abroad by corporations that have their main seat under their jurisdiction.” That same year, international legal scholars published the Maastricht Principles on Extraterritorial Obligations in the area of Economic, Social and Cultural Rights, which argued that states are obligated to regulate transnational corporations and to provide a legal remedy for victims of human rights violations committed by those corporations.

Perhaps most important, and cited by several briefs in the Jesner case, are the UN Guiding Principles on Business and Human Rights (UNGPs). Adopted by the UN Human Rights Council in 2011, the UNGPs have had a significant influence on the development of the state duty to protect against corporate violations of human rights. As the petitioner’s brief notes, the “state duty to protect human rights ‘can be rendered weak or even meaningless’ unless states ‘take appropriate steps to investigate, punish and redress business-related human rights abuses when they do occur.’” This includes providing a civil remedy for harms caused by corporations. Indeed, the Commentary to Article 23 of the UNGPs explains that “Business enterprises should treat this risk as a legal compliance issue, given the expanding web of potential corporate legal liability arising from extraterritorial civil claims, and from the incorporation of the provisions of the Rome Statute of the International Criminal Court in jurisdictions that provide for corporate criminal responsibility.” The drafter of the UNGPs, Professor John Ruggie has noted that corporations are subject to liability for human rights violations in a growing number of jurisdictions around the world.

Certainly, the arguments above are not exhaustive. However, it is clear that there is an existing practice in many states to hold corporations accountable for human rights abuses through civil (and criminal) claims, and that the commentary of intergovernmental institutions underscore the fundamental importance of states providing a judicial remedy.

Gerrymandering 3.0

by Samuel Rubinstein, Strategic Engagement Fellow, American Constitution Society

In North Carolina, the General Assembly is advancing a proposal that would add judges and district attorneys to a growing list of gerrymandered districts that already includes members of Congress and state legislators. The new maps will cut the number of judicial districts from eight to five, diluting the strength of urban votes. The new map cracks apart countywide districts in urban areas such as Wake and Durham counties. To accommodate their deliberations, the legislature moved to scrap judicial primaries planned for early next year, further tampering with voters’ choices.

Proponents call the plan an update to a system that has been unchanged for 60 years. But recently the North Carolina Courts Commission, a 30-member advisory board that helps make policy related to the state judiciary and that includes sitting judges from around the state, recommended delaying consideration of the new judicial boundaries.

Besides the lack of a transparent process and rush to approve new districts, perhaps most troubling is how the new maps would reduce diversity on an already un-diverse judiciary. According to the American Constitution Society’s Gavel Gap report, white men make up 66% of North Carolina’s judges, despite being only 31% of population.

But analysis of the proposal by NC Policy Watch shows that it would “double-bunk” more than half of all black district court judges in the state, forcing them to run against each other, with similarly severe effects on women and other minority groups, at both the district and superior court levels.

This is just the latest in a series of judicial attacks. Already, the General Assembly has switched judicial elections from non-partisan to partisan, eliminated public financing for judicial campaigns,  shrunk the size of courts to deny the Governor appointments, and slashed the budget of the Attorney General, resulting in layoffs of dozens of career attorneys. The legislature is also proposing to eliminate popular election of judges in favor of selecting them by legislative election, further concentrating power in their hands. Although judicial elections are deeply flawed, a new report from the Brennan Center explains why legislative selection is equally problematic, which is why only two states use this method.

A fair judiciary is worth defending. Courts are supposed to be an impartial arbiter, insulated from the politics of the other coequal branches. Stacking the deck to make the courts subservient to the legislature is un-democratic, tramples the rule of law, and most of all, helps only those in power.

Deciding Cases is Your Job, Mr. Chief Justice

by Richard C. Reuben, James Lewis Parks Professor of Law and Journalism, University of Missouri School of Law

Chief Justice Roberts's concerns about the integrity of the court being diminished if the court starts hearing partisan gerrymandering claims is overwrought and disappointing.

The truth is, ANYTIME the court opens up a new area, as sometimes it must to enforce the Constitution and especially the Bill of Rights, there will be some cases that will need to be decided to flesh out the details. Fear of more cases, for example, certainly hasn't deterred the court from deciding questions regarding the death penalty, abortion, and affirmative action to name just a few.

What happens is that the court uses subsequent cases to provide additional guidance and things settle down as the lower courts learn to apply the new constitutional standards and only the cases that get to the court thereafter are where the courts of appeal are in significant disagreement.

There is little question that there is partisan gerrymandering, and that it has been used successfully to deprive citizens of one party their right to effective participation in the political process by making their vote meaningless in fact because it is impossible to elect the candidate of their choice. There is no question that this violates the Constitution, as it has been interpreted for more than a half century. For Roberts to sacrifice this right to vote on the altar of efficiency is an affront to the court whose integrity he seeks to preserve.

We’re Challenging Muslim Ban 3.0, Which Is Just More of the Same

Muslim Ban Airport

by Cody Wofsy, Staff Attorney and Skadden Fellow, ACLU Immigrants' Rights Project

*This piece was originally posted on ACLU's Speak Freely blog. 

President Trump signed the third version of his Muslim ban executive order on Sept. 24, about two weeks before the case involving the second version of the ban was to be argued before the Supreme Court. This action led the court to cancel oral arguments on the earlier version so that the parties could address whether the new order renders the Trump administration’s appeal moot.

In the meantime, the ACLU has returned to the federal district court to challenge the new order, which is set to go into effect on Oct. 18.

The new ban indefinitely bans people from Iran, Libya, Syria, Yemen, and Somalia, five overwhelmingly Muslim countries that were also targeted by the earlier versions. The order emphasizes that countries are being banned because they have not cooperated in providing information for visa vetting. Yet Somalia remains banned even though it does live up to the government’s new visa cooperation standards.

The order adds restrictions on Chad — another Muslim-majority nation — along with North Korea and Venezuela. The inclusion of two countries that are not Muslim majority doesn’t even qualify as a fig leaf. North Korea accounted for just 61 affected visas last year — out of more than 75 million visitors to the United States.

And Venezuela as a country is not banned in any meaningful sense. Only certain Venezuelan government officials and their families are affected, and those individuals are only barred from obtaining tourist and temporary business visas. In contrast, nearly every single person from the Muslim-majority countries is barred from getting a green card, no matter what family, business, or other U.S. connections he or she has.

The total numbers underscore the scope of suffering the new ban will impose, if allowed to go into effect, and the hugely disproportionate impact it will have on Muslims. According to an analysis of the number of U.S. visas granted by category in 2016, the new ban would bar tens of thousands of individuals from Iran, Libya, Syria, Yemen, and Somalia annually from obtaining green cards.

Many of these are people coming to the U.S. to join their husbands, wives, parents, and children who are citizens or lawful permanent residents. These families would be separated indefinitely. By contrast, the impact on people from countries newly included in the ban is small: 40 immigrants from Chad can expected to be blocked, nine from North Korea, and none at all from Venezuela.

The new ban, like the old ones, is illegal. The March version of the ban is unconstitutional because, as the Court of Appeals for the Fourth Circuit recognized, the ban violates the Establishment Clause by disfavoring a specific religion. “When the government chooses sides on religious issues,” the court explained, “the inevitable result is hatred, disrespect and even contempt towards those who fall on the wrong side of the line.”

The court noted that there was a “direct link” between Trump’s “numerous campaign statements promising a Muslim ban that targets territories,” the original ban he signed in January — “only one week into office executing that exact plan” — and the second, “watered down” version of the ban, as Trump called it.

As a candidate, Donald Trump posted a statement “On Preventing Muslim Immigration” calling for “a total and complete shutdown of Muslims entering the United States.” He claimed that “Islam hates us” and that there are “problems with Muslims coming into the country.” When this was met with outrage, Mr. Trump told the world that he would achieve the same goal without explicitly naming Muslims.

“People were so upset when I used the word Muslim,” he explained. “Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”

This third Muslim ban is yet another attempt to follow through on that campaign pledge and to paper over the president’s plain religious animus, which he has never disavowed. The courts have not been fooled and have rightly seen the previous versions of the order as unreasonable, immoral, and unconstitutional. The same is true of this one.

 

Supreme Court Hears Argument Challenging 21st Century Yellow-Dog Contracts

by Ruben J. Garcia, Associate Dean for Faculty Development and Research, William S. Boyd School of Law, University of Nevada Las Vegas. Garcia is a member of the ACS Board of Directors and Board of Academic Advisors.

In 1932 and 1935, Congress declared the public policy of the United States in labor matters as follows:

“[I]t is necessary that [the individual unorganized worker] have full freedom of association, self-organization…in the designation of such representatives or in self-organization, or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…”.

In Section 3 of the Norris LaGuardia Act, Congress declared that contracts which conflict with the public policy declared above to be “unenforceable in any court of the United States.” Congress has not repealed or retracted these declarations.

Now over 80 years later, the truth of these propositions is being tested in the Supreme Court in Epic Systems v. Lewis, consolidated with Ernst & Young v. Morris and NLRB v. Murphy Oil. The case, which was argued on the first Monday in October Term 2017, tests whether the congressionally declared purposes in Norris La-Guardia and the National Labor Relations Act of 1935 (NLRA) to better equalize bargaining power between employers and employees will still be honored in the 21st Century. After decades of Supreme Court decisions that have favored mandatory arbitration over state laws, the Supreme Court has not yet confronted the clash between the federal labor laws of the 1930s and the Federal Arbitration Act of 1925 (FAA).

In the Official Transcript of the oral argument released yesterday, Justice Stephen Breyer put the tension directly before attorney Paul Clement. Clement argued on behalf of the companies in all three consolidated cases:

Justice Breyer: “What we have here is a statute, two of them, Norris-La Guardia, the NLRA…The statute protects the workers when two workers join together to go into a judicial or administrative forum for the purpose of improving working conditions and the employers here all said, we will employ you only if you promise not to do that. Okay? I haven’t seen a way that you can, in fact win the case, which you certainly want do, without undermining and changing radically what has gone back to the New Deal, that is, the interpretation of Norris-LaGuardia and the NLRA.”

Justice Ruth Bader Ginsburg called these group action waivers “yellow dog” agreements, after the early 20th Century contracts which conditioned employment on not organizing or joining a union. The Supreme Court approved these contracts on “freedom of contract” grounds in Coppage v. Kansas in 1915, but Norris La-Guardia specifically overruled that decision in 1932.

Justice Ginsburg: “This has all the same—the essential features of the “yellow dog” contract.  That is, there is no true liberty of contract on the part of the employee, and that’s what Norris-LaGuardia wanted to exclude.”

In all three consolidated cases, the employer sought to prevent the employees from proceeding in a collective action under federal law for back wages due by moving to compel performance of the arbitration agreement, which required workers to proceed individually. Justice Elena Kagan asked why the employer’s attempted enforcement of the group action waivers was not directly covered but the Norris LaGuardia Act.

Justice Kagan:  “What about section 102 of Section 103 of the Norris-LaGuardia Act. . . . Any undertaking or promise in conflict with—-essentially the same language as Section 7 — shall not be enforceable in any court.  So what about that.”

Clement answered that the prohibitions of Norris-LaGuardia “assume[d] the conclusion,” because “you didn’t have a freestanding right to proceed with class arbitration in an arbitral forum.  You had a right to go to whatever forum and abide by those rules, and one of the rules in the arbitral forum is no class action.”

When Principal Deputy Solicitor General Jeffrey Wall was at the lectern, Justice Samuel Alito wanted an answer to the Norris-LaGuardia questions, asking: “Is [Norris-LaGuardia] not before us, is it so closely tied to the NLRA issue that it is appropriate for us to decide it?”  Wall answered that the issue was not before the Court, and even it was, Wall said: “I don’t think it adds anything.”

Then, Wall was asked about the potential conflict between his argument and another federal statute, Title VII of the Civil Rights Act of 1964.  Justice Kagan asked, “I do think both you and Mr. Clement agree that, if you had a discriminatory arbitration agreement, let’s say an arbitration agreement that said that the employer will pay for the arbitration costs of men, but not women, that would not be enforceable, why not?”

Wall responded, “If that case came to the Court, I think we would have no trouble concluding that the ADA and Title VII supply a clear congressional command, and . . . .”

Justice Kagan: “Okay. So, if that’s the case and you are saying there can be a conflict between statutes and Title VII would supply a clear congressional command, even though Title VII says absolutely nothing about arbitration.”

Wall responded:   “Well, again, I don’t think it is a magic words test—and we agree with Petitioners on that. You a have a clear congressional command absent that.  You just don’t have it in Section 7.”

Wall continued and concluded the United States’s argument, at odds with its Executive Branch agency the National Labor Relations Board which enforces the NLRA: “Justice Kagan, it is not a fundamental attribute of arbitration to discriminate on the basis of race, age, or gender.  It is a fundamental attribute of arbitration, and this Court said it three times, to pick the parties with whom you arbitrate.”

He continued: “And our simple point is this case is at the heartland of the FAA. It is at best, at the periphery of the NLRA, on the margins of its ambiguity, and you simply can’t get there under the Court’s cases.”

With that, Wall and the Trump Administration presented the Court with a stark choice—side with the employers who have the bargaining power to “pick” the parties with whom they arbitrate and further relegate workers to the “margins of the [the NLRA’s] ambiguity,” or effectuate Congress’s purpose in the Norris-LaGuardia and National Labor Relations Acts to protect employees’ ability to engage in “concerted activity for their own mutual aid and protection,” in order to improve the bargaining power of all workers.  Although Justice Neil Gorsuch did not ask questions during the argument, his views might be dispositive when the case is decided later this Supreme Court Term.

*Ruben J. Garcia is author of the book Marginal Workers: How Legal Fault Lines Divide Workers and Leave Them Without Protection (NYU Press)

Did President Trump Declare War on North Korea?

by Ashley Deeks, Professor of Law and Senior Fellow, Center for National Security Law, at the University of Virginia School of Law

Last week, North Korea’s Foreign Minister claimed that President Trump had “declared a war” on his country.  He apparently reached that conclusion based on President Trump’s tweet stating that North Korea “won’t be around much longer” if the Foreign Minister’s U.N. speech accurately represented the thoughts of Kim Jong Un.  In response to this alleged U.S. declaration of war, the Foreign Minister threatened that North Korea would shoot down U.S. aircraft flying off the North Korean coast, even if the aircraft were in international airspace.

Is North Korea correct that President Trump declared war?  And if so, what follows as a legal matter?

The short answer is that President Trump has not declared (and constitutionally cannot declare) war with North Korea.  First, as a matter of international law and international relations, states no longer “declare war” against each other.  Today’s international system is regulated by the U.N. Charter, which provides that states must refrain in their international relations from the threat or use of force.  The only lawful exceptions to this prohibition are actions taken in self-defense or pursuant to authorization by the Security Council.  States acting pursuant to one of these two exceptions would have little reason (legally or politically) to declare war, and there are few examples in recent history of states declaring war when acting in self-defense.  As a result, declarations of war may now carry a patina of aggression – something no state wants to be seen as undertaking.

Second, as a matter of U.S. domestic law, the Constitution clearly provides that Congress, not the Executive, will “declare war.”  Congress last formally declared war against other states in 1942 (against Bulgaria, Hungary, and Rumania).  Today, Congress authorizes the president to engage in armed conflict through the use of Authorizations for the Use of Military Force.  For instance, Congress authorized the president to use force in 2001 against al Qaeda and the Taliban, and in 2002 it authorized him to invade Iraq.  (A full list of declarations of war and authorizations for the use of military force can be found in this Congressional Research Service report.)

Third, as a factual matter, President Trump’s tweet is hardly unambiguous.  It seems quite likely that North Korea’s response to it is driven entirely by politics, not by an actual belief that Trump has, as a legal matter, initiated a de jure state of war between the two countries.

The fact that the U.S. system assigns Congress the formal war powers does raise an interesting question, however.  International law generally treats states as black boxes, which means that one state is not usually expected to know how other states’ internal decision-making processes work.  Thus, it is conceivable that a U.S. president could issue a statement that clearly appears to be a declaration of war, and that another state could fairly rely on that statement to construe itself to be in a formal state of war with the United States, in the belief that U.S. presidents may declare war.  That is not the factual situation in play here, however.

Putting together the ideas that (1) states rarely issue declarations of war today and (2) in the U.S. system, Congress declares war, President Trump’s tweet should not be (and cannot reasonably be) construed as constituting a declaration of war.  What really matters here are actions, not words.  The key question is what, if anything, the president orders the U.S. military to do moving forward.  Although Congress is constitutionally assigned the “declare war” power, this does not mean that the Executive cannot undertake military action without prior congressional authorization.  There are dozens of examples of situations in which the President has deployed military forces abroad without congressional blessing – including the Korean War, the attempted rescue of Americans in the U.S. Embassy in Tehran, and airstrikes in Libya in 2001, to name just a few.  It remains to be seen, of course, what roles the President and Congress choose to play in navigating these tense relations with North Korea.  But we are not at war yet.