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Earlier Supreme Court Jurisprudence Shows Hope Not Lost for Those Seeking Corporate Accountability in U.S. Courts

By: Carey Shenkman[*]

Wednes­day, the U.S. Supreme Court set a deeply alarm­ing prece­dent in its deci­sion in Kio­bel v. Roy­al Dutch Petro­le­um, hold­ing in sub­stance 5–4 that the pre­sump­tion against extrater­ri­to­ri­al­i­ty defends cor­po­ra­tions from being held account­able for human rights abus­es like tor­ture, rape, and mur­der com­mit­ted in oth­er coun­tries. For years, U.S. courts were the only recourse for vic­tims from coun­tries with pow­er­less, dys­func­tion­al, or cor­rupt judi­cial sys­tems. Their cas­es were a rare check on the con­duct of our com­pa­nies and their sub­sidiaries abroad.

Although Kio­bel steep­ened the incline for human rights vic­tims abroad seek­ing relief in U.S. courts, an ear­li­er Supreme Court case tells us that this deci­sion may not mean the end of these cas­es. Low­er courts have, on at least one occa­sion, upheld a right that was fore­closed by the Court. This might hap­pen where a judi­cial opin­ion is suf­fi­cient­ly frag­ment­ed or qual­i­fied. Indeed, one opin­ion demon­strat­ing this was struc­tured very sim­i­lar­ly to Kio­bel.

Jus­tice Kennedy on Wednes­day qual­i­fied the opin­ion of the Kio­bel major­i­ty in a sep­a­rate con­cur­rence. He empha­sized that cas­es may arise that are not “cov­ered … by the rea­son­ing and hold­ing of today’s case.” He reit­er­at­ed the impor­tance of the “[m]any seri­ous con­cerns with respect to human rights abus­es com­mit­ted abroad.” Jus­tice Kennedy stressed that the issue “may require some fur­ther elab­o­ra­tion,” not­ing the fact that “[o]ther cas­es may arise with alle­ga­tions of seri­ous vio­la­tions of inter­na­tion­al law.”

When I read this, I was remind­ed of anoth­er 5–4 Supreme Court opin­ion that played out sim­i­lar­ly. In Branzburg v. Hayes, decid­ed in 1972, the Supreme Court held that the First Amend­ment does not pro­vide for any reporter’s priv­i­lege. In oth­er words, there is no con­sti­tu­tion­al pro­tec­tion for the con­fi­den­tial rela­tion­ship between a reporter and her sources.

Despite this hold­ing, nine out of twelve fed­er­al juris­dic­tions still rec­og­nize some form of con­sti­tu­tion­al reporter’s priv­i­lege.

Jus­tice Pow­ell was a tiebreak­er in Branzburg. And he, just like Jus­tice Kennedy in Kio­bel, filed a sep­a­rate opin­ion qual­i­fy­ing the major­i­ty after break­ing that tie. Jus­tice Pow­ell began, like Jus­tice Kennedy, by advis­ing cau­tion: “I add this brief state­ment to empha­size what seems to me to be the lim­it­ed nature of the Court’s hold­ing.” An impor­tant con­sid­er­a­tion in Branzburg was poten­tial gov­ern­ment harass­ment of jour­nal­ists to divulge their sources. Jus­tice Pow­ell stressed the need to bal­ance “vital con­sti­tu­tion­al and soci­etal inter­ests on a case-by-case basis.”

Jus­tice Kennedy’s cau­tion to ‘wait and see’ in light of the seri­ous human rights inter­ests strong­ly par­al­lels Jus­tice Powell’s cau­tion to exam­ine impor­tant First Amend­ment inter­ests case-by-case.

The struc­ture of Kio­bel may pro­vide some wig­gle room for low­er courts, as such struc­ture achieved in Branzburg. The major­i­ty in Kio­bel fash­ioned a test where claims that “touch and con­cern” the Unit­ed States would still have to over­come the pre­sump­tion against extrater­ri­to­ri­al­i­ty. Jus­tice Breyer’s con­cur­rence, with which three oth­er Jus­tices joined, declined to decide the case on this pre­sump­tion. And Jus­tice Kennedy’s cau­tion­ary words send a mixed mes­sage to low­er courts. Courts might, on one hand, inter­pret Jus­tice Roberts’ major­i­ty opin­ion to pro­vide for a strong pre­sump­tion. But Jus­tice Kennedy, on the oth­er, reminds courts that there are strong human rights con­cerns at play. These con­cerns might affect whether activ­i­ty is said to “touch and con­cern” the Unit­ed States. There is still judi­cial flex­i­bil­i­ty to deter­mine whether severe human rights abus­es affect U.S. com­mit­ments to uphold inter­na­tion­al human rights. These are all fac­tors in the cal­cu­lus for low­er courts to decide whether suf­fi­cient exi­gen­cies exist to over­come the pre­sump­tion against extrater­ri­to­ri­al­i­ty.

After Branzburg, a major­i­ty of fed­er­al cir­cuits actu­al­ly worked around the ‘for­mal death’ of the reporter’s priv­i­lege, look­ing to the pur­pose of the First Amend­ment to do so. Sim­i­lar­ly, courts con­cerned by the under­ly­ing human rights norms affect­ed might dis­tin­guish Kio­bel from a future case that Jus­tice Kennedy warned would not be “cov­ered … by the rea­son­ing and hold­ing.” After the dust set­tles, this means there may be room for at least some fed­er­al juris­dic­tions to allow cas­es against cor­po­ra­tions that per­pe­trate hor­rif­ic human rights crimes abroad.

* Carey Shenkman is a grad­u­at­ing J.D. Can­di­date at N.Y.U. School of Law, Researcher in First Amend­ment Law, Author in Inter­na­tion­al Crim­i­nal Law, and Notes Edi­tor on N.Y.U. Law Review.

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