Some Thoughts on Kiobel

A few weeks ago I wrote a post providing a brief background on Kiobel v. Royal Dutch Petroleum Co., the case in which the Supreme Court will likely decide whether the Alien Tort Statute confers federal jurisdiction over claims alleging corporate violations of customary international law. I’d like to offer a couple of additional thoughts on that upcoming decision.

Although not directly at issue in the litigation, Kiobel seems to raise an interesting question about the method by which courts go about ascertaining custom. A core principle of international law is that binding customary norms develop from “general and consistent practice that states follow from a sense of legal obligation.” According to Sosa v. Alvarez-Machain, the ATS provides for federal jurisdiction over civil actions by aliens who have alleged violations of a particular subset of these norms–i.e., those that are “accepted by the civilized world” and defined with a fairly high degree of specificity. Thus, determining whether the ATS provides jurisdiction in any given case often requires a judicial analysis of the nature, extent, and rationale of the practice that has allegedly given rise to the norm that the defendant has allegedly violated. In some cases–such as those involving piracy, offenses against ambassadors, and torture–the jurisdictional analysis is relatively easy because the underlying norm is widely accepted and well-defined. In others, it may be difficult to ascertain whether a given norm has the requisite levels of state acceptance and definitional precision.

The circuit split underlying the decision to grant cert in Kiobel suggests that the norm of corporate liability falls into the latter category. After canvassing selected treaties, precedent from international tribunals, and scholarship, the Second Circuit concluded that corporations have never been prosecuted for violating customary international law, and that a custom of liability therefore does not exist. But upon completing the very same inquiry, the Seventh Circuit reached precisely the opposite conclusion in Flomo v. Firestone National Rubber Co. Notably, Flomo disagreed with the Second Circuit on the ground that that court had simply overlooked a salient example of corporate liability–that of the German company I.G. Farben for its conduct during WWII.

Assuming the Seventh Circuit was correct, the Second Circuit’s failure to recognize the I.G. Farben precedent seems significant. But from the standpoint of judicial process, the failure was also understandable, for federal courts lack the resources to systematically identify all relevant international practice for the purpose of resolving 12(b) motions. A thorough inquiry would seem to require reviewing the mundane, day-to-day behaviors of the entire “civilized world”–to use Sosa‘s words–over a course of years, even decades. And yet, there is no database of such practice, no analogue to the essentially complete and well-organized federal and state case reports on Westlaw and Lexis. Thus, standard legal research techniques won’t necessarily generate reliable answers. Courts can take shortcuts by focusing their research on salient indicia of state practice in the form of treaties and important decisions from international tribunals, but those examples are inevitably incomplete.

One conclusion to draw from this observation is that the disagreement between the Second and Seventh Circuits does not necessarily itself show that the norm of corporate liability lacks the acceptance and precision that Sosa demands. Instead, the circuit split may simply reflect the difficulties inherent in federal judicial identification of international custom. Perhaps the Seventh Circuit was right, and the Second simply overlooked relevant precedent. Perhaps both circuits did so. Absent a rigorous historical inquiry, it’s hard to say with certainty. Either way, to say that it is difficult to accurately identify whether any given customary norm enjoys the clarity and acceptance necessary to create ATS jurisdiction is not to say that the norm lacks such characteristics.

Another possible conclusion to draw is that federal courts should find ways to supplement their capacity to ascertain international custom. One potential solution lies in Rule 53 of the Federal Rules of Civil Procedure, which permits courts to appoint special masters “to address pretrial . . . matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” If the problems of research method that I have described preclude courts from “effectively and timely” identifying customary international law, then the Rule would seem to permit courts to use special masters to supplement their efforts. These special masters would ideally be international legal experts or historians with expertise in the relevant area of custom, and would have a more comprehensive and nuanced understanding of state practice than the court could possibly obtain through standard legal research techniques. Briefly looking at the Federal Reporter, I did not see any examples of courts using special masters in this way, but perhaps it’s a step worth considering.

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