Kennedy warns Kneedler of the foreign policy implications of corporate tort liability: “Under your view, the U.S. corporation could be sued in any country in the world, and that would have no international consequences. We don't look to the international consequences at all.”
Justice Breyer tries to tug the court away from these discussions of what the court is calling extra-territoriality. He says “The question is, is a corporation a private actor? And is there any reason why, just like any other private actor, a corporation couldn't be sued for genocide?”
Kathleen Sullivan, the former dean of Stanford Law School, has 30 minutes to defend Royal Dutch Petroleum. (Disclosure: She taught me constitutional law and may still have the power to change my grade.) And here’s where you’ll want to cue the parrots and the rum. Breyer asks her about what happens in the case of Pirates Inc: “Do you think in the 18th century if they'd brought Pirates Inc., and we get all their gold, and Blackbeard gets up and he says, ‘Oh, it isn't me; it's the corporation.’ Do you think that they would have said: ‘Oh, I see, it's a corporation. Good-bye. Go home?’ ”
Sullivan says that the corporation would not be liable. “You could seize the ship with which the piracy was committed, as you could later slave trading ships. But you could not seize another ship, and you could not seize the assets of the corporation.” In other words, Pirates Inc. keeps its booty; Blackbeard walks the plank.
Justice Elena Kagan jumps in to observe that “all of these [laws] are written to prohibit certain acts, and they don't talk about the actors. So, it’s as if somebody came and said this norm of international law does not apply to Norwegians. And you [say] well, there's no case about Norwegians. It doesn't specifically say "Norwegians." But, of course, it applies to Norwegians because it prevents everybody from committing a certain kind of act.”
Sullivan replies that the other conventions talk about natural persons, not corporations. Alito wonders what happens if you take away the fact that the human rights violations happened overseas. “Let's assume that the French ambassador is assaulted or attacked in some way in the United States, and that that attack is by a 10 corporate agents. Would we say that the corporation cannot be sued under the Alien Tort Statute?” he asks. Sullivan says “yes, because there is no assaulting ambassador norm that applies to corporations.”
Sullivan explains that under international law corporations and people are treated differently, in part because, “Nuremberg, if it established nothing else, established that it is individuals who are liable for human rights offenses.” Then she and Kagan do that thing where they step all over each others’ words for a while. Justice Breyer swings in from the topsail, armed with a case from 1666. He notes that the court wrote, “The taking of the ship on the high seas was "odious and punishable by all laws of God and man." Possibly setting up a “laws of God and man” exception to corporate immunity.
In his rebuttal, Hoffman reminds the court that “ ‘tort’ meant to the founders "tort remedies." It meant that the means of enforcement would be done by the common law. That's all that was available then, it's all that's available now.”
The skepticism of the court’s conservative bloc notwithstanding, this is a case that may not be resolved on the usual 5-4 party lines. That’s because a decision giving Shell and the many folks who filed amicus briefs supporting Shell (Coca-Cola, Chevron, BP, KBR ... you get the idea) what appears to be the right to commit human rights abuses abroad is about the only way they could make the corporate monster they built in Citizens United look any worse.