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Forum Post: Corporate Person Case--Shell Oil trying to get out of accounting for Genocide

Posted 2 years ago on March 17, 2012, 1:21 p.m. EST by 99time (92)
This content is user submitted and not an official statement

Are corporations persons or not persons? It depends! For 'free' speech rights, yes. To account for genocide, maybe not. This is unbelievable. Read on...

THE SHELL OIL CASE

Families of those executed by Royal Dutch Petroleum, also known as Shell oil, are suing the corporation for committing GENOCIDE, under the Alien Tort Statute, which dates back to 1789, in the pending Supreme Court entitled Kiobel v. Royal Dutch Petroleum Co.

CASE QUESTIONS

The Supreme Court issues the following questions for oral argument: Full questions are here. http://www.supremecourt.gov/qp/10-01491qp.pdf

  1. Whether the issue of corporate civil tort liability under the Alien Tort Statute ("ATS") is a merits question ...

  2. Whether corporations are immune from tort liability for violations of the law of nations such as torture,... [and] genocide,... or if corporations may be sued in the same manner as any other private party defendant under the ATS...

ORAL ARGUMENT

The oral argument takes place. Here are some highlights and explanations. Read the argument here. http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-1491.pdf Listen here. http://www.supremecourt.gov/media/audio/mp3files/10-1491.mp3

The oil company attorney suggests that the term 'persons' does not really mean 'persons' but rather 'individuals' so that corporations cannot be sued under the ATS:

MS. SULLIVAN: ... The human rights offenses here arise from conventions that speak to individual liability... [T]he genocide convention, article IV... says that "persons committing genocide ... shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals."

Justice Ginsberg drops a bombshell:

JUSTICE GINSBERG: ... As far as a corporate entity is concerned, a corporate -- a corporation could sue, could be a plaintiff under the Alien Tort Statute, could it not?

The oil company attorney replies:

MS. SULLIVAN: [A prior case, Bradford, from 1795,] only establishes that a corporation may be a plaintiff. It does not speak to the question here, which is whether a corporation may be a defendant.

Corporations can sue but cannot be sued under ATS! How is that for fairness and reciprocity?

Why are corporations not liable for genocide and summary executions? Because the word 'persons' does not really mean 'persons' in the convention; or, as explained in the briefs, corporations are not 'moral persons.'

Corporations are persons who can spend huge amounts of money for 'free' speech, and persons who can sue under ATS, but corporations are not persons -- or persons doesn't really mean persons -- when corporations are sued for being involved in genocide! OUTRAGEOUS!

JUSTICE KAGAN: Now all the United States' law and most other countries' law would hold the corporation liable for the individual's act. Isn't that right? That's a general principle of law.

Kagan is correct. This is a universal rule that makes corporations responsible for the acts of their employees. Respondeat Superior, Vicarious Liability, and Agency are long-established concepts of corporate liability. But forget it all. Nothing to see here, folks.

MS. SULLIVAN: ... [E]ven for ... torture, genocide, piracy, slavery,... the nations of the world,... have treated individuals and corporations differently.

The Shell attorney fully knows the implications of her position -- let's make corporations have all the rights, but permit them to commit genocide! SUPER CORPS!

MS. SULLIVAN: ... the only way a corporation can do anything is through the acts of human beings; thus, there is always the question, when it comes to corporate liability, to ask how to attribute the action of the human beings who work for the corporation to the corporation.

Ironically, the Shell attorney hypocritically makes the very same argument that those opposed to Citizens United corporate personhood would make!

Later, the Shell attorney lays it out frankly, boldly asserting that corps can sue but not be sued:

MS. SULLIVAN: ... [W]e urge you to reach a broader ruling [under ATS], which is that corporate liability is foreclosed both by the uniform practice,... of the nations of the world.

REARGUMENT ORDERED, question changed

The Supreme Court takes the unusual step of asking for additional argument and asking another question. The new question is:

Whether and under what circumstances the Alien Tort Statute ... allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States. http://www.supremecourt.gov/qp/10-01491qp.pdf

In other words, how can they protect Shell oil from this lawsuit and maintain some consistency and legitimacy?

The glaring hypocrisy of holding that corporations can sue but cannot be sued is not tenable, even in these crazy times.

Perhaps they can protect Shell oil from being sued on other grounds, such as by throwing out the entire ATS, despite the fact that it has been used many times, as shown here. http://viewfromll2.com/2009/11/11/alien-tort-statute-cases-resulting-in-plaintiff-victories

This additional argument will take place after the 2012 election. How convenient.

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[-] 2 points by RayLansing (99) 2 years ago

Shell trying to pull a double standard? They won't escape what they have done. You reap what you sow the way I see it.