Posted by Jonathan Adler:
Bradley & Goldsmith on Alien Tort Statute Apartheid Litigation:
http://volokh.com/archives/archive_2009_04_19-2009_04_25.shtml#1240164862
Curtis Bradley and Jack Goldsmith have an [1]op-ed in today's
Washington Post decrying a federal court's refusal to dismiss Alien
Tort Claims Act suits against several American corporations for
allegedly aiding and abetting the crimes of South Africa's apartheid
regime. Their article begins:
As American taxpayers shell out hundreds of billions of dollars to
bail out U.S. companies, a federal court in New York recently paved
the way for significantly increasing some of these firms' financial
burdens. Relying on the Alien Tort Statute of 1789, the court ruled
this month that certain companies that did business with apartheid
South Africa -- including distressed firms such as General Motors
and Ford -- can be held liable for South Africa's human rights
violations during that period.
The Alien Tort Statute was designed to allow diplomatically
sensitive tort cases to be brought in federal court in the hopes of
avoiding the friction with foreign governments that could arise if
state courts failed to provide a fair hearing. The statute hid in
obscurity for almost 200 years before a federal appellate court in
New York invoked it in 1980 to allow victims of human rights abuses
committed abroad to sue foreign officials in U.S. courts. This
holding turned the statute on its head by creating, rather than
reducing, friction with other countries. It also spawned a cottage
industry of human rights litigation.
Also of note, the article makes a brief mention of State Department
nominee Harold Koh, and his role in developing the legal theories upon
which the litigation is based.
The executive branch is unlikely to press for reversal. President
Obama recently nominated Yale Law School Dean Harold Koh to be
legal adviser to the State Department, the government office that
presents the U.S. view of these cases to federal courts. Koh is an
intellectual architect and champion of the post-1980 human rights
litigation explosion. He joined a brief in the South Africa
litigation arguing for broad aiding-and-abetting liability.
Sounds to me like this issue could make for another good [2]question
to ask Koh at his confirmation hearing.
The good folks at Opinio Juris have more on the Bradley-Goldsmith
op-ed [3]here, [4]here, and [5]here.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/04/17/AR2009041702859.html
2. http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1239328009
3.
http://opiniojuris.org/2009/04/18/bradley-and-goldsmiths-disturbing-editorial-about-khulumani/
4.
http://opiniojuris.org/2009/04/19/bradley-goldsmith-corporate-ats-litigation-is-a-luxury-we-can-no-longer-afford/
5.
http://opiniojuris.org/2009/04/19/bleg-what-do-non-us-legal-scholars-think-about-ats-doctrines/
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