On October 11, 2017, the United States Supreme Court will hear oral argument in a case called Jesner v. Arab Bank, in which 6000 victims of terrorist acts allege that the Arab Bank enabled terrorism through serving as the financial institution of terrorist organizations. This case stands out from the pack of human rights-related Alien Tort Statute (ATS) cases on the facts in some ways, but it is the vehicle by which the Court may finally decide if corporations can be sued under the ATS.
To my mind, this case raises an absurd question: can the courts exclude corporations as defendants under a particular statute when such an exclusion is not provided for in the statute? To put it another way, could an individual escape liability for violating human rights simply by incorporating?
Some of you may be thinking of Citizen’s United right now. There, the Court decided to protect corporate freedom of speech (unlimited campaign contributions), broadly expanding the rights of corporations. If corporations are people, with rights, shouldn’t they also have the same responsibilities as people? From a policy perspective, this is a no brainer. We, as natural persons, have to pay for our wrongs, be they negligent or intentional. There is no reason why a corporation should be treated any differently.
Arab Bank doesn’t want the Court to take a big picture view of this issue, however, but to decide it on the basis of a narrow, debatable legal issue: whether domestic or international law governs the existence of corporate liability under the statute. There is a strong argument that corporate liability does not exist under international law, so if international law is applied here, there is no corporate liability. The details of this, including why international law would be considered at all, have been discussed at length elsewhere. Check out Just Security’s Jesner Symposium, and John Eubanks’ piece on the American Constitution Society blog.
As a litigator, I find these debates interesting. But as a human being who wants to drink clean water, breathe clean air, and live in a world where I won’t be killed for organizing a union or protesting a pipeline, I view this as a perfect example of how the law can become a tool of oppression and absurdity.
On the upside, even with our current Court, the deck is stacked in our favor. The Second Circuit is the only circuit who thinks there is no corporate liability under the ATS, and even the originalists have good reason to find liability here. As as Jeff Vogt argues, "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."
If a majority of the Court somehow finds no corporate liability under the ATS, I suggest that we all go incorporate, immediately. If corporate people get rights and no responsibilities, we natural people will have to incorporate for the sake of equality. Don’t worry, YOUR NAME, LLC will still have the right to participate fully in our democracy. You’ll probably get a better tax rate than you have now, and there are lots of firms that would be happy to help you offshore any excess resources to avoid paying any taxes at all. The future for Charity Ryerson, LLC is bright.
Charity Ryerson is a co-founder and legal designer for Corporate Accountability Lab.
