Author: Marco Simons

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A further defense of human rights clinics

(Marco Simons is Legal Director of EarthRights International.  He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)

Last month, Chicago law professor Eric Posner launched an ill-conceived attack on law school human rights clinics; on my usual blog at EarthRights International (ERI), I wrote a response. (Prof. Posner is the son of Judge Posner, who’s been around these pages a lot recently.) More recently, over at Opinio Juris, Hofstra law professor Julian Ku echoes some of Posner’s argument: sure, he thinks that Posner’s argument “sweeps a bit too broadly,” but he accepts the critique that broad-based human rights clinics “risk becoming a platform for pure political advocacy,” which is “undesirable.”

In Ku’s mind, narrowly-focused clinics such as asylum clinics that may have some international human rights element in them are acceptable, while more broadly-focused clinics – those that employ the range of strategies used by actual human rights lawyers – might be appropriate, depending “on the particular situation of the law school and the goals of its students.”

Despite my earlier response to Posner, there’s more to say here, because Ku’s addition points up further methodological and substantive flaws in the argument. I’m pleased for the opportunity to dig in deeper in this forum.

Methodologically, this is an argument that is both levied by people who are in a poor position to evaluate its merits, and apparently lacking in evidence. Ku, like Posner, is an academic law professor, not primarily a practitioner. He notes that the counter-argument has been advanced by “those who are involved in these clinics” – who would naturally defend their occupation – but ignores my response, as someone who is not involved in a clinical program. (I don’t know if this is deliberate – ERI’s blog is admittedly not that high-profile, but Posner himself did respond to my post on his own blog.)

Since modesty is generally absent in the blogosphere, I’ll posit that I’m in a better position than Ku or Posner to evaluate the usefulness of human rights clinics. Why? Posner’s reply to my critique says that “a clinic experience could be valuable to students if it teaches them (distinctively) legal skills and generates benefits for a client (or is likely to).” The conclusion that human rights clinics perhaps don’t do this seems based entirely on supposition, but my contrary observation is not; it’s based on years of experience and evidence.

I’ve been practicing international human rights law for more than a decade, and I know that my own clinical experience (at the Yale clinic, which Ku singles out) has been quite useful to my career. I learned numerous practical legal skills – from the details of researching international law (which is seldom taught elsewhere in law school, even in international law courses), to techniques for interviewing victims of human rights abuses, to approaches to writing human rights reports founded on international law, to briefs in US courts incorporating international law.

And I also know that at least some of my projects led to benefits for clients. One of the cases I worked on was Doe v. Karadzic, which later led to a $4.5 billion jury verdict in favor of survivors of war crimes in Bosnia. Another major project was a Human Rights Watch report on corporal punishment in Kenyan schools, which was then rampant and highly abusive; two years later the Kenyan government banned the practice, and the ban was enshrined in the constitution in 2010. (Actually eliminating it remains a work in progress.)

My own experience with a single clinic is, naturally, highly anecdotal (though no less so than the critiques). But that’s only the beginning of the evidence I’ve seen of the value of human rights clinics. I’ve employed at least six young lawyers who have come through different human rights clinics, and without exception I can say that they have gained valuable skills. In fact, some of the exercises they have done in their clinics parallel workshops that we conduct for our own staff at ERI. Human rights clinics are a major part of the reason that US-trained lawyers are generally better prepared for the work that we do than their counterparts in other countries, who are rarely taught the practical legal advocacy skills that are essential in this field.

I can also vouch for the practical benefits of the work done by these clinics, because as a practitioner I’ve had the opportunity to partner with clinics at over a dozen different law schools. Obviously many international human rights projects are long-term efforts, so tangible benefits are not always quickly identifiable, but these clinical projects do achieve results in most cases. And it would be a mistake to give students the impression that only legal work that shows immediate benefits to specific clients is worth doing; one of the skills that they learn is the value of contributing to one piece of a long-term strategy.

So I would submit that neither Posner nor Ku is in a particularly good position to evaluate the effectiveness of human rights clinics, and neither of them points to any evidence that human rights clinics don’t serve purposes they recognize as valid. My evidence may be anecdotal, but it’s not insignificant, and I’d rather base my judgments on the evidence available.

Substantively, the part of Posner’s critique that Ku echoes – and that deserves further examination – is the suggestion that human rights clinics engage in activities that are “pretty close to pure political advocacy,” modeled after NGOs “whose lawyers also engage in broad range of non-lawyering political advocacy,” and that it is “undesirable” for law schools to “train[] students in pure political advocacy.” Thus, Ku reasons, law schools should “perhaps demand such clinics ensure that a certain percentage of their work is indeed traditional legal skills training.”

There’s a bit of sleight-of-hand going on here, because the argument starts from the assumption that the kind of advocacy that human rights lawyers do is not lawyering – and of course it’s easy to agree that law schools should be focused on teaching lawyering skills. But Ku makes a definitional error in describing this kind of work as “pure political advocacy”; it could more appropriately be described as “using legal arguments in favor of a policy position.” Framed that way, I’d be surprised if anyone would dispute that this is a proper role for a lawyer, and a valuable skill to teach law students interested in making this work part of their career.

As far as I’m concerned, this should be part of “traditional legal skills training.” Lawyers are hired by clients every day to develop legal arguments in furtherance of policy positions, in every area of the law. Indeed, that’s largely what Ku’s frequent writing partner, John Yoo, famously did as a lawyer for the Bush administration. (And did badly – perhaps if Yoo had a grounding in an international human rights clinic, he would not have so grievously misinterpreted international law to legitimize torture.)

I’m not aware of any human rights clinic that has engaged in “political advocacy” unmoored from legal principles, especially principles of international human rights law. As far as I can tell, that notion – like the suggestion that maybe clinics don’t teach valuable lawyering skills – is entirely lacking in evidence. So Ku’s critique, while softer than Posner’s, rests on the same lack of evidence and the same flawed understanding of human rights practice as somehow not lawyerly in nature.

The real test of a clinic should be whether its graduates are valued for the skills they have learned. Regarding human rights clinics, I can personally testify to this, and I have seen no evidence to the contrary.

10

Is there a constitutional right to corporate separateness?

(Marco Simons is Legal Director of EarthRights International.  He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)

Although it’s gone largely unnoticed amid the blockbuster campaign finance and affirmative action cases, what could be one of the most significant cases of this Supreme Court term will be argued tomorrow – DaimlerChrysler v. Bauman. This happens to be an Alien Tort Statute (ATS) case arising out of Daimler’s alleged participation in targeting labor activists during the Dirty War in Argentina, but the issue in the case is far broader than the ATS. The Supreme Court is considering whether there is personal jurisdiction over Daimler, a German corporation, and Daimler is essentially arguing that it has a constitutional right to be treated separate from its subsidiaries. (One of the few institutions to notice Bauman is the Vanderbilt Law Review, which hosted a roundtable on the case.)

The Ninth Circuit held that the contacts of Daimler’s US subsidiary could be attributed to the parent for personal jurisdiction purposes, because, functionally speaking, they were essentially acting as a single business – the subsidiary was performing acts on behalf of the parent, which the parent would have had to do if the subsidiary did not exist. Daimler argues that this is a violation of due process, because the Constitution requires that it be treated separately from its subsidiary.

My organization, EarthRights International (ERI), submitted an amicus brief on the side of the Bauman plaintiffs, arguing that the Constitution does not enshrine any right to corporate separateness. Indeed, it’s difficult to see how it could – when both Due Process clauses were adopted, it was illegal in all states for one corporation to own another. How can a corporation have a constitutional right to be treated separately from its subsidiaries when subsidiaries did not exist when the constitutional provisions at issue were adopted?

It’s important to note that this case is not about what the “best” rule would be. Due to the interplay of the Federal Rules of Civil Procedure and the California long-arm statute, personal jurisdiction here extends to the limits of constitutional due process, and has not in any way been restricted by Congress. Back in 1925, under a different statutory regime, Justice Brandeis wrote for the Court in Cannon Manufacturing Co. v. Cudahy Packing Co. that a parent corporation’s presence in a state could not be established through the presence of a subsidiary – but he stated that this was due to the absence of statutory authority, not because the Constitution forbids it:

No question of the constitutional powers of the State, or of the federal Government, is directly presented. The claim that jurisdiction exists is not rested upon the provisions of any state statute or upon any local practice dealing with the subject. . . . Congress has not provided that a corporation of one State shall be amenable to suit in the federal court for another State in which the plaintiff resides, whenever it employs a subsidiary corporation as the instrumentality for doing business therein.

This situation has now changed, however, because – in California – Congress has effectively provided that anyone is amenable to suit in federal court whenever the Constitution permits exercise of jurisdiction. And in many other contexts, the Court has already determined that it’s okay to attribute the business of subsidiaries to the parent corporation.

In some ways Bauman is a followup to Kiobel v. Royal Dutch Petroleum, in which the Court decided earlier this year that claims under the ATS could not proceed where the only connection to the United States was the “mere presence” of a foreign multinational corporate defendant. (See ERI’s recent publication about Kiobel, Out of Bounds.) But Bauman has much more far-reaching implications. The Court is faced with the decision of whether to constitutionalize relatively recent innovations in corporate law, and hold that simply because state laws now allow corporations to own other corporations, due process forbids a more functional approach to jurisdictional contacts with the forum.

In other contexts, including tax law, the Court has declined to hold that corporations must be treated separately from their subsidiaries. Changing that in Bauman could have significant implications for a number of areas of the law where corporate separateness is not the rule, and add a new constitutional right that is uniquely available to corporations. Previously, questions of whether to credit separateness between parent and subsidiary corporations have generally been thought of as issues of state law, not the Constitution. After all, corporations can only exist when state law allows them to.

A ruling in favor of Daimler could also have the effect of further incentivizing offshoring of U.S. corporations. A U.S. corporation, headquartered here, is always subject to U.S. jurisdiction for its acts. But if that corporation changes its nationality, and its U.S. operations are now that of a subsidiary, the parent corporation – and, by extension, the rest of the corporation’s global operations – would become insulated from any scrutiny by U.S. courts.

I am most interested to see the approach of the Court’s self-identified originalists to this question. There can be no question that the original intent of the due process clause was not to afford some right to maintain distinctions between parents and subsidiaries, concepts which did not exist at the time. Will the originalists disregard their approach to the Constitution when it comes to protecting the interests of foreign multinational corporations?

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After Kiobel, extraterritoriality is not a question of subject matter jurisdiction under the Alien Tort Statute – and neither is corporate liability

(Marco Simons is Legal Director of EarthRights International.  He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)

The Supreme Court issued its decision in Kiobel v. Royal Dutch Petroleum a few weeks ago, and it has raised more questions than it has answered. Commentators and scholars have puzzled over what the Court did and what it means – all we really know is that the Court did not expressly rule on whether corporations could be sued for human rights abuses under the Alien Tort Statute (ATS) (the original question certified), and only began to elaborate under what circumstances an ATS suit could be brought for injuries arising in a foreign country (the question certified for reargument).

As to the extraterritoriality question, the Court held that some sort of presumption against extraterritoriality applied to ATS claims. Unlike the usual application of such presumptions, however, the Court did not suggest that this meant that no claims arising in foreign countries could be heard. Instead, the Court’s five-justice majority said that claims needed to be assessed on the basis of the extent to which they “touch and concern” the United States, and that where the only connection to the U.S. is the “mere corporate presence” of a foreign multinational, that is insufficient to allow an ATS claim to proceed.

This raises an interesting question of how this presumption is being applied. As the Supreme Court ruled in Sosa v. Alvarez-Machain, the ATS is a purely jurisdictional statute – claims under the statute come from federal common law. Ordinarily, the presumption against extraterritoriality does not apply to jurisdictional provisions; it only applies to substantive provisions. So Kiobel did not decide that the ATS is not an extraterritorial statute – it decided that the presumption against extraterritoriality applies to claims brought under the ATS. Read More

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Sidestepping corporate liability, Supreme Court shifts focus of Kiobel case to extraterritoriality

(Marco Simons is Legal Director of EarthRights International.  He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)

Last week I blogged about the Kiobel v. Royal Dutch Petroleum case, in which the Supreme Court was considering whether corporations could be sued for complicity in serious human rights abuses under the Alien Tort Statute (ATS). I noted that some scholars and amici were urging the Supreme Court to decide the case on other grounds; namely, that the ATS was limited to suits against U.S. citizens.

On Monday the Supreme Court issued a rare reargument order in Kiobel, directing the parties to re-brief and argue next Term the question of “[w]hether and under what circumstances” the ATS allows suits for abuses “occurring within the territory of a sovereign other than the United States.”
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Is the Alien Tort Statute Really Limited to Suits Against U.S. Citizens?

(Marco Simons is Legal Director of EarthRights, International.  He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)

The Supreme Court will hear argument in Kiobel v. Royal Dutch Petroleum Tuesday, to determine whether corporations can be sued for serious human rights abuses under the Alien Tort Statute (ATS), 28 USC 1350. But some scholars are urging the court to decide the case on other grounds.

There is a set of conservative legal scholars who intensely dislike the ATS and especially its modern use in international human rights cases. This dislike is somewhat mystifying – what the ATS essentially does is allow cases to be brought in federal court, rather than state court, where they implicate torts against aliens in violation of serious international law violations, such as torture or genocide. Would it really be better to hear cases against Paraguayan torturers or Rwandan genocidaires in state court?

Led by Curtis Bradley, Anthony Bellia, and Bradford Clark, this group of scholars argued strenuously that the ATS did not allow cases under modern human rights law at all. After this position was thoroughly repudiated by the Supreme Court in Sosa v. Alvarez-Machain, they have trotted out new arguments. The latest, from Bellia & Clark, is that the ATS only allows suits by aliens against U.S. citizens; it’s started to get some traction, as four Ninth Circuit judges adopted a version of this argument in their dissent in the Sarei v. Rio Tinto case decided in October.

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