HLS Human Rights Clinic Supports Rehearing of Case

The International Human Rights Clinic at Harvard Law School submitted a brief in support of a petition that calls for the rehearing of a case concerning the liability of corporations responsible for human rights violations.

The amicus curiae brief supports the request that the Second Circuit court rehear Kiobel, et al. v. Royal Dutch Petroleum Co., et al. “en banc,” meaning that all Second Circuit judges would rule on the case, possibly overruling the three-judge panel that originally heard the appeal. The court’s ruling on Sept. 17 had rejected the premise that corporations can be held liable for violations of international human rights law under the Alien Tort Statute.

If the ruling stands, it will prevent victims of corporate human rights violations from taking legal action and leave corporations effectively unaccountable in their practices, according to Law School Clinical Instructor Susan H. Farbstein.

The Clinic—which typically submits one to three briefs a semester—filed the recent brief on behalf of professors of federal jurisdiction and legal history, who argue that the aim and precedent of the Alien Tort Statute extends jurisdiction to corporations when an alien sues for a violation.

Traditionally, U.S. law does not distinguish between citizens and corporations, according to Clinical Director Tyler R. Giannini, who is overseeing the brief with Farbstein.

“You wouldn’t want to create incentives that allow the creation of a shield,” Giannini said. “If you set up a corporation, you suddenly can’t be liable for your actions. This ruling shields corporations, and that’s very problematic.”

For the past 15 years, human rights abuse cases involving corporations have been litigated in federal courts, including the Second Circuit, according to Farbstein.

She added that the Second Circuit court’s ruling in this case has received significant attention in the human rights community. Five amicus briefs have been filed in support of a rehearing of the case.

Giannini said that the court will make a decision whether or not to rehear the case en banc by the end of this year. If the court chooses to rehear the case, it is unlikely the court will issue a decision before the end of 2011.

Law School students Stephen S. Cha-Kim, Amelia J.M. Evans, Elizabeth B. Forsyth, Benjamin Hoffman, Sandra R. Ray, and Marissa A. Vahlsing assisted in the process of submitting the brief by researching legal questions, drafting sections of the brief, and line editing.

—Staff writer Zoe A.Y. Weinberg can be reached at zoe.weinberg@college harvard.edu.