Don't let Microsoft clip our rights

 The computer giant is trying to force us into forced arbitration

Microsoft, the company that gave us Vista, Ctrl-Alt-Delete and Clippy, has something in store for us that’s even worse.  The company has been phasing in forced arbitration clauses in its “services agreement.”

That means if you are harmed by a Microsoft product or service, you can’t stand up for your rights in court.  Instead, you have to take your case to an arbitrator hired by Microsoft.  Arbitrators do not need to be lawyers or follow precedent, yet their word is nearly always final and unappealable.  One study found that such arbitrators rule for the businesses that hire them 94 percent of the time.

Microsoft also won’t let you band together with others the company has wronged and bring a class-action suit – often the only way to stop a corporation from cheating millions of consumers.  The latest version of the services agreement makes this ban even more strict.

One can see why Microsoft might be fond of forced arbitration.  In a 2003 e-mail, company founder Bill Gates used the following terms to describe what it was like to use one of his own products:

 disappointed, backwards, unusable, totally confusing, strange, pathetic, completely odd, weird, scary, crazy, slow, garbage, not usable, crapped up, crap, absolute mess, craziness, terrible.

Microsoft joins a lengthening list of big businesses that are taking away our rights when we’re harmed by their products and services.  Public outrage forced General Mills to back down.  But odds are you’ve clicked through at least one contract with a forced arbitration clause in the fine print. They are showing up everywhere, from credit card contracts to the Instagram terms of use.  And in the case of Microsoft, using one of the affected products means you’ve consented to surrendering your rights.

Perhaps the best indicator of just how bad a deal forced arbitration is for consumers is the sneaky way big businesses force it on us.

Take Microsoft’s latest email announcing the changes.  “Our users' needs are at the center of everything we do,” says the happy little email. “That's why we are updating the Microsoft Services Agreement.”  But there’s no mention of forced arbitration in the email itself.  And there’s no mention of it in the FAQ that supposedly offers the “highlights.”

No, you have to click on the link to the fine print and scroll down to Section 10 before you find out what Microsoft is taking away.  If forced arbitration is so great, why does it have to be forced?  Why not offer it on a voluntary basis?  And why aren’t companies bragging about it instead of tucking it away in those long, long “agreements” that few of us have the time to read?

There is a solution.  The Arbitration Fairness Act would put an end to these outrages.  If you don’t want your rights “clipped” by the company that gave us Clippy – or by all the other corporations on the forced arbitration bandwagon – tell your Members of Congress to pass the Arbitration Fairness Act.

 Read more about forced arbitration

AFJ report documents unprecedented, dangerous overreach by conservative Supreme Court justices

On anniversary of March on Washington, AFJ cites Voting Rights Act decision as prime example

Chief Justice John Roberts

Five conservative United States Supreme Court justices have taken judicial overreach to an unprecedented and dangerous new level, according to a report released Wednesday by Alliance for Justice.

“Justice Ruth Bader Ginsburg recently called the current Supreme Court ‘ … one of the most activist courts in history.’  We agree,” said AFJ Justice Programs Director Michelle Schwartz.   “Conservatives preach judicial restraint, but, led by Chief Justice John Roberts, the Supreme Court majority routinely overreaches in pursuit of an ideological agenda.”   

The most prominent recent example of the Court’s activism is the majority’s decision to strike down a key provision of the Voting Rights Act of 1965.  “We agree with Justice Ginsburg’s description of that decision,” Schwartz said.  “She called it ‘stunning in its activism.’

According to the report, the Court majority

…has rewritten the rules and gone to bat for a conservative agenda that shields the most powerful interests in American society at the expense of the most vulnerable.

The courthouse doors are increasingly shut to those who have been harmed by corporate malfeasance and powerful interests, because the Roberts Court has changed long-standing rules of the game … At the same time, the Court has ignored settled precedent to undermine, or even completely eviscerate, critical civil and human rights, consumer protection, environmental, and other laws that are contrary to a conservative agenda.

In cases after case, according to AFJ’s report, the current Supreme Court majority, led by Chief Justice John Roberts:

    ● Decides to hear cases about legal issues which do not currently warrant Supreme Court review.
    ● Answers questions not presented to the court, thereby issuing broad, new legal rules without consistency, logic or fairness to the parties involved.
    ● Decides factual issues that should be left to lower courts and Congress.

    The report illustrates these practices through brief analyses of more than a dozen cases decided in recent years, and notes that the Court will hear several more in the term beginning in October that threaten additional overreach by the justices.

Read the full report here

Hey Congress, why don’t you call John Roberts’ bluff?

By Michelle D. Schwartz
Director of Justice Programs

In a devastating decision he no doubt hopes will be overshadowed by Wednesday’s historic marriage equality decisions, Chief Justice John Roberts on Tuesday tore out the heart of the Voting Rights Act, arguably the most successful civil rights law in our nation’s history.

Chief Justice John Roberts

Roberts’s opinion—for himself and the other four conservatives on the Court—struck down as unconstitutional the formula in Section 4 of the VRA that dictates which jurisdictions must have voting rules changes preapproved under Section 5 of that same law.  Section 5 theoretically survives; it just doesn’t actually apply to anyone anymore.

The Chief Justice’s opinion cynically states that the Court isn’t doing any big thing because Congress can act to restore the Voting Rights Act:

We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.

But as Professor Richard Hasen so aptly pointed out in The New York Times earlier this week, Roberts knows that won’t happen:

The chief justice couches his opinion in modesty, stating that the court is striking only the Section 4 coverage formula and not Section 5. But don’t be fooled: Congress didn’t touch the formula in 2006 because doing so would have doomed renewal. Congress avoided the political issue then, and there’s no way today’s more polarized Congress will agree upon a new list of discriminatory states.

In other words, Roberts is trying to have it both ways:  claiming he has left Section 5 of the VRA intact, while knowing he has effectively killed it because Congress won’t act.

So why doesn’t Congress call his bluff? Wouldn’t it be great if Congress went ahead and did what Roberts has said they can and should do?  Wouldn’t it be fun to watch Roberts have to keep smiling and pretending this is truly what he wanted all along?

Acting in this way could be particularly therapeutic for those Democratic senators (and they know who they are) looking to atone for voting to confirm John Roberts.  It’s too late to keep him off the bench, but you can still show him who’s boss!

And while they’re at it, members of Congress should go for broke by restoring some of the other rights the Court has undermined in recent weeks and years, including the right to sue for discrimination and harassment at work, and the right to band together with others who have been harmed by big corporations to vindicate your rights.

In all of these cases, Roberts and his conservative buddies on the Court have clearly shown they don’t live in the real world.  It’s time for members of Congress to prove they do.

AFJ: Supreme Court defers to the powerful in workplace harassment case

Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decision in Vance v. Ball State University:

Justice Ginsburg

      Deferring to the powerful at the expense of the powerless, the Supreme Court majority has imposed heavier burden for victims of workplace harassment and discrimination seeking justice in our courts. This decision makes it far easier for employers to evade responsibility for discrimination and harassment in the workplace.

      As Justice Ginsburg so aptly pointed out, the majority’s decision conveys a lack of understanding of how workplaces actually operate, and now Congress must act to ensure our laws protect against real world discrimination.

Big business knows who its friends are

Our First Monday video, Unequal Justice is subtitled, The Relentless Rise of the 1% Court. In case even more evidence is needed to show that the current Supreme Court majority is very, very friendly to corporate special interests, consider some data compiled by Adam Chandler for SCOTUSblog. The topic: the organizations most interested in having the Supreme Court hear a case in the first place.

Before the Supreme Court can decide a case it has to decide whether to hear it at all. The side that wants the case heard submits a brief requesting a writ of certiorari - that is, a decision to hear the case. The other side submits a brief urging the Court to turn the case down. Nearly 99 percent of the time, the Court says no.

Just as when cases are argued on the merits, groups who feel they have an interest in the outcome may submit amicus curiae (“friend of the court”) briefs.

As you would expect, the groups most active in filing such briefs asking the Supreme Court to hear cases are the groups with the most confidence their side will win. And who are those groups? They include the Pharmaceutical Research and Manufacturers of America, the American Bankers Association, the National Association of Manufacturers and, in first place, the U.S. Chamber of Commerce.

This is the second time Chandler has run these numbers. He sees a trend:

Overall, the ideological cast of the new entrants [among the top filers] is more conservative, anti-regulatory, and pro-business than that of those they replaced. To varying degrees, all seven of the new entrants have conservative profiles, whereas several of those left off the list this year, like the Society of Professional Journalists and the National League of Cities, have no obvious ideological bent. Five years ago, I wrote that “the list of top amici is dominated by pro-business and anti-regulatory groups—such groups hold over half the slots in the top sixteen.” Now they hold over three-quarters.

Big business is glad to be “friends of the court.” And the Supreme Court majority is glad to return the favor.

Click on the link to the right, under "First Monday Films" to see AFJ’s video, Unequal Justice: The Relentless Rise of the 1% Court.

Will cruise passengers be victimized again – by forced arbitration

As they suffered in sweltering heat, walked through sewage and defecated in plastic bags, some of the passengers aboard the Carnival Cruise Lines ship Triumph probably were thinking “At least when we finally get home we can sue the b-----ds.”

The Carnival Triumph in happier times
(including working toilets)

Well, they can try – and some already have.  But the U.S. Supreme Court has made it a lot harder than it should be. 

It appears that Carnival is far better prepared to prevent lawsuits than it was to contain the damage aboard the Triumph.  In the fine print that comes with every ticket, there is a clause that bars most lawsuits.  Instead, passengers must go into forced arbitration.  In addition, when passengers buy a ticket for a Carnival Cruise they give up their right to be part of a class-action suit – though again, one law firm is going to try anyway.

As we explained in a previous post to this blog, and in our 2011 report, Arbitration Activism, this means the deck is stacked against the passengers at every turn.  And in keeping with its role as “The 1% Court” the Supreme Court majority has upheld forced arbitration, and the ban on class actions, in one outrageous case after another.

The Carnival Cruise fine print makes exceptions for individual suits in cases of “personal injury, illness or death.”  In one of the suits brought so far, a passenger cites severe dehydration and bruises suffered while on “aggressive food lines.”    

But passengers whose suffering extended only to enduring heat, stench, limited food and no toilets may be out of luck.  As for the validity of any class action, presumably Carnival could appeal all the way to the Supreme Court – and we know what that is likely to mean.

IT’S EVEN WORSE FOR THE CREW

There is another group that endured worse suffering than the passengers.  As Josh Eidelson points out in Salon, even when nothing goes wrong, conditions on cruise ships can be hell for the crew.  And there is almost nothing they can do about it.

Citing the work of Prof. Ross Klein, the author of Paradise Lost at Sea: Rethinking Cruise Vacations, Eidelson writes: 

Carnival is technically registered in Panama, a country whose laws Klein charges “have been changed to satisfy Carnival’s needs and interests. Because Carnival means a fair amount of money to their national treasury.” Effectively, for cruise workers, says Klein, “there aren’t any real labor regulations.” (He noted that one lawsuit that was brought against Carnival in the U.S. ended with a settlement requiring future such disputes be pursued through an arbitration system, effectively requiring potential worker plaintiffs to shell out tens of thousands of dollars in transportation and legal fees.)[Emphasis added.]

Linda Greenhouse revisits a prime example of the 1% Court in action

In an excellent column this week, Linda Greenhouse, former Supreme Court reporter for The New York Times revisits a case, Knox v. Service Employees International Union, which Alliance for Justice has been following closely, but much of the media have ignored.

Justice Samuel Alito

Knox illustrates both how the current majority goes out of its way to favor big business, a theme of our most recent First Monday documentary, Unequal Justice, and also the extreme judicial activism of the court’s extreme right – another issue we’ve followed closely.

Greenhouse also cites Prof. Benjamin Sachs who, on this Blog and elsewhere, has argued that, in a post-Citizens United world, the majority’s view gives unions notably less “free speech” than corporations.

As Greenhouse points out, the issue in Knox was narrow and seemingly arcane—whether workers who were not members of the union had been given adequate opportunity to “opt out” of one particular “special assessment” to be used for some political activity.

But the right-wing majority, led by Justice Samuel Alito, seized upon the opportunity to go far beyond this narrow issue.  They questioned whether unions have a right to require non-members to affirmatively “opt out” of any use of their dues for political activity.  They even questioned whether unions have a right to charge dues for non-members at all, even though those non-members, of course, receive all the benefits of collective bargaining agreements.

Greenhouse calls it “flagrant activism.”  She writes: 

In his opinion, Justice Alito denied going beyond the confines of the question the parties brought to the court, but Justice Sonia Sotomayor shredded his defensive assertion in a separate opinion. Joined by Justice Ruth Bader Ginsburg, Justice Sotomayor said the case, as presented, provided no occasion for the majority’s attack on the opt-out rule, let alone its expressions of skepticism about the constitutionality of the agency shop.  …  Justice Sotomayor said: “To cast serious doubt on longstanding precedent is a step we historically take only with the greatest caution and reticence. To do so, as the majority does, on our own invitation and without adversarial presentation is both unfair and unwise.”

Justice Breyer, joined in his dissenting opinion by Justice Kagan, noted that “the debate about public unions’ collective-bargaining rights is currently intense.” He added, “There is no good reason for the court suddenly to enter the debate, much less now to decide that the Constitution resolves it.”

President Obama’s other audience

Will the Supreme Court help America complete its journey

 – or throw obstacles in the way?

When President Obama gave his second inaugural address Monday, it’s estimated that one million people gathered on the National Mall to hear him.  Tens of millions more heard the speech on television, radio or online.

But there also was a much more select audience – an audience of nine, seated just a few feet from the president.  Because several issues the president raised will be profoundly affected by actions of the United States Supreme Court, in some cases, within the next few months.

The president said:

Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal, as well.

And, in marking civil rights landmarks, the President pointedly included “Stonewall” along with Seneca Falls and Selma.

The Supreme Court can speed the journey, by voting to strike down the so-called Defense of Marriage Act, and upholding the ruling by the 9^th Circuit Court of Appeals that California’s Proposition 8 is unconstitutional.  Or the court can make it a much longer, more tortuous journey by upholding discrimination.

The president said:

We the people declare today that the most evident of truth that all of us are created equal -- is the star that guides us still; just as it guided our forebears through Seneca Falls and Selma and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.

And he said:

Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote.

The famous march from Selma to Montgomery was a march for the right to vote – a right won with passage of the Voting Rights Act of 1965.  But now, a challenge to a key provision of that law could significantly setback the progress won by Dr. King and those who marched with him.

The president said:

Together we discovered that a free market only thrives when there are rules to ensure competition and fair play.

But over and over again, the Supreme Court majority has bent those rules to favor corporate special interests at the expense of the rest of us, something documented in detail in our First Monday documentary, Unequal Justice.

This term, the Court may bend the rules again, when it returns to the issue of forced arbitration in the case of American Express Co. v. Italian Colors Restaurant.

And, of course, the president alluded to the tragedy of gun violence:

Our journey is not complete until all our children, from the streets of Detroit to the hills of Appalachia to the quiet lanes of Newtown, know that they are cared for and cherished and always safe from harm.

The Supreme Court already has made that part of the journey more difficult.  The right-wing activist majority radically reinterpreted the Second Amendment, discovering an individual right to bear arms where none existed before.

Chief Justice John Roberts administers the Oath of Office

--White House photo

But even Justice Antonin Scalia did not close the door to all regulation of guns.  And whatever Congress may do in response to the Newtown tragedy, the Supreme Court may well have the final word.

That’s why something President Obama did not mention is at least as important as all of the subjects he raised in an excellent inaugural address: the need for a progressive judiciary – on our federal district courts, on our circuit courts of appeals and on the United States Supreme Court.

The REAL danger in Instagram's new Terms of Use: forced arbitration

Perhaps you’ve read about the controversy over new “Terms of Use” from the photo-sharing service Instagram, which now is owned by Facebook.  Under the terms, if you use Instagram it is free to sell your photos, your likeness and pretty much anything else it knows about you to advertisers – without any further consent on your part, and without compensating you.  And if, by some chance, you’re under 18, Instagram assumes that when you click “accept,” at least one parent has read over the terms and agreed to them on your behalf.

The ensuing furor prompted Instagram to issue a statement saying, in effect, well, yes, that’s what we said, but it’s not what we meant. The company then withdrew that particular language.

But, as a Reuters story points out, that’s not even the scariest part of the new Terms of Use.

This is:

EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND INSTAGRAM WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. [Caps and boldface in original].

Once the new terms take effect, existing users will have only 30 days to opt out.  New users will have only 30 days after they join. And if you want to opt out, you’ll have to have to do it by snail mail.  The only other choice: Cancel your Instagram account.  But, according to lawyers who are suing Instagram, if you do that, you lose all rights to photos you've already uploaded.

“A FREE PASS TO BREAK THE LAW”

If these terms take effect as planned on Jan. 16, Instagram will be the latest in a long line of companies to block your fundamental right to justice by forcing you into a system where the deck is stacked against you at every turn.  And if Instagram can get away with it now, will Instagram’s parent company, Facebook, try it next?

As we said in our 2011 report, Arbitration Activism, the arbitration system gives corporations “a free pass to break the law.”  In keeping with its never-ending deference to corporate special interests, the right-wing majority on the U.S. Supreme Court effectively rewrote federal law, issuing decision after decision helping big business make the most of that free pass.

For starters, facing off against a corporation in arbitration is like playing a baseball game in which the other team hires, fires – and pays – the umpires.  So it’s no wonder a study of top arbitrators for one major arbitration firm found that they rule for big business 93.8 percent of the time.  In addition:

● Filing fees often are higher in arbitration; that can discourage individuals from suing, particularly over relatively small dollar amounts.

● Rules of discovery are fashioned by the arbitration firms and, yes, by the big businesses that hire them.

● It’s almost impossible to appeal.

● Proceedings are secret; they don’t even have to produce a transcript.  As we note in Arbitration Activism “corporations can prevent negative publicity, keep their wrongdoing secret, and avoid emboldening other customers and workers from bringing legal action.”

● Perhaps most serious, arbitration clauses, like the one from Instagram, prohibit class-action suits - like the one that's just been filed against Instagram over the new Terms of Use.  When millions of people are cheated out of relatively small amounts per person, each can’t go through a cumbersome arbitration process to get her or his money back.  The only hope for justice – and the only real deterrent to fraud – is a class-action.  But the Supreme Court has upheld the prerogative of big business to deny consumers that right.

And it’s not just consumer issues.  Arbitration, and with it the ban on class-actions, is spreading to employment contracts, threatening to make it nearly impossible for workers to sue over race, sex or age discrimination.

CONGRESS CAN FIX THIS

The Arbitration Fairness Act of 2011 would bar forced arbitration in most civil rights, consumer, and employment discrimination cases.  The bill never got out of committee.  We hope members of the new Congress will try again.

In the meantime, if you use Instagram, be sure to write out that opt-out letter and mail it to Instagram, LLC ATTN: Arbitration Opt-out 1601 Willow Rd. Menlo Park, CA 94025.

While we’re giving thanks tomorrow …

...let’s take a moment to think about the workers at Walmart who will be out on a picket line on Friday  - or forced to work on Thanksgiving night – while we enjoy our time with friends and family.  AFJ’s Bolder Advocacy Blog has been spotlighting the campaign for justice at Walmart.  Check out these two recent posts.  This one offers and overview of the campaign, and how all of us can help:

Black Friday Protests at Walmart

This Friday, the nation’s biggest shopping day, thousands of Americans will be calling on Walmart to improve working conditions at its stores and warehouses. The Black Friday day of action is the culmination of a wave of worker activism that started in October with an historic walkout in Los Angeles.

As the recent recession accelerated the growth of the part-time economy, the opposition to Walmart’s practices takes on renewed relevance. Walmart sets an industry standard by creating part-time positions with low wages, unaffordable benefits, erratic scheduling, and unsafe workplaces.

Read the full post here

And there’s more about the campaign in this guest blog from Erica Smiley, Campaigns Director for Jobs with Justice and American Rights at Work

Walmart Can Change Its Ways — if We Make Them

Good jobs are the cornerstone of a strong, healthy economy.  A good job is one where workers have collective bargaining rights, employment security, and wages and benefits that allow their families to enjoy a decent standard of living.  Thus, organizing to transform the economy means organizing to transform work into permanent, secure jobs where workers have dignity and respect.

Read the full post here

The many complaints against Walmart include widespread discrimination against women.  The current protests are needed in part because the Supreme Court failed the women of Walmart when they ruled against them in a class-action suit.  The Walmart case is among those featured in AFJ’s documentary Unequal Justice: The Relentless Rise of the 1% Court.

On Tuesday, Sarita Gupta, executive director of Jobs with Justice and American Rights at Work will discuss the Walmart campaign at the formal premiere of Unequal Justice in Washington.  She’ll be part of a panel that also includes AFJ President Nan Aron, Pam Gilbert, former executive director of the U.S. Consumer Product Safety Commission and Linda Lipsen, CEO of the American Association for Justice.  The event is free, and there’s still time to register here.

AFJ releases “Unequal Justice: The Relentless Rise of the 1% Court"

In a series of 5 to 4 rulings, a majority on the United States Supreme Court effectively has rewritten the law to favor big business at the expense of the American people, according to a new documentary.  Unequal Justice: The Relentless Rise of the 1% Court, produced by Alliance for Justice (AFJ), was released online Monday.

“Today, as the Supreme Court begins a new term, the court will be ‘open for business,” said AFJ President Nan Aron.  “The term is already packed with cases with the potential to restrict corporate accountability and limit everyday Americans’ civil rights and access to justice  The Court’s decisions this term could have harmful consequences for the ability of consumers, victims of discrimination, and others to get a fair day in court. 

“But no one should be surprised,” Aron said.  “What we are likely to see in the term that begins today was decades in the making.”

Unequal Justice chronicles a 40-year campaign by corporate special interests to put the thumb of big business on the scales of justice.  The campaign has its origins in a profoundly-influential memo written in 1971 by corporate lawyer Lewis Powell, just months before he himself was named to the court by President Richard Nixon.  The memo urged the business community to fight what was then a burgeoning consumer and environmental movement.

“There has been much attention in recent months to the way the executive and the legislative branches stacked   the deck in favor of ‘the one percent’ and against the rest of us,” Aron said.  “But there’s been far too little attention paid to the success of big business in influencing the Supreme Court.  With a presidential election just weeks away, it’s time to pay attention to the decisions a president makes that often have the most lasting consequences – his nominees who will be appointed to the nation’s highest court.”

Said Aron: “We produced this video because we want to highlight the importance of the Supreme Court in the lives of everyday Americans and to spur a renewed sense of activism to hold the Court accountable for its actions.”
 

To learn more about the issues discussed in Unequal Justice and to find out about hosting  a screening, go to www.unequaljustice.org  And read AFJ President Nan Aron’s call to action in The Nation.

Supreme Court to Hear Major Human Rights Case Again: Much More at Stake the Second Time Around

Guest Post by Tyler Giannini & Susan Farbstein

Susan Farbstein & Tyler Giannini

The Supreme Court will open its new term on Monday.  The first argument it hears will be Kiobel v. Royal Dutch Petroleum Co., the most significant human rights case to reach the Court in recent years.  Intense interest in the case has generated more than 80 amicus curiae briefs from a range of actors around the world, including governments, human rights organizations, and corporations.  Kiobel is especially intriguing not only because of the human rights issues at stake, but also because it will be the Court’s second time hearing oral argument in the matter.  This is a rarity; the last example was Citizen United, the major campaign finance case.

What are the issues?

Kiobel is an Alien Tort Statute (“ATS”) suit based on a 1789 statute that allows non-U.S. citizens to bring civil claims in U.S. federal courts for universally recognized violations of international law.  The case arises out of allegations that Royal Dutch/Shell was complicit in killings and other abuses by the Nigerian government in the 1990s.  The Court first heard Kiobel last February, addressing the question of whether corporations can be held liable under the statute.  But in an unusual move, a week later the Court requested supplemental briefing and a second oral argument.  

At the first oral argument in February, it quickly became clear that some of the justices were interested in additional questions beyond corporate liability.  Specifically, they asked about whether the ATS permits claims that arise out of actions that take place on foreign soil (in this case, Nigeria).  This question—whether, and when, the ATS allows such suits—was the focus of the supplemental briefing and will be addressed in the second oral argument. 

As the Petitioners and their amici have explained, the text of the statute, as well as its history, show that the ATS does allow for cases arising on foreign soil.  It was intended to provide a remedy for universal violations, including piracy, which by definition occur outside the United States.  For example, one of the earliest interpretations of the ATS, by Attorney General William Bradford in 1795, involved pillage and plunder committed during a raid on the British colony of Sierra Leone.

What is at stake?

On the question of corporate liability, Shell’s lawyers have advocated for a categorical rule: there should be no corporate liability under the statute under any circumstances.  Shell’s lawyers are proposing a similarly absolutist rule on the question of extraterritoriality: plaintiffs should never be allowed to bring ATS claims for violations occurring outside the United States.  This view is in opposition to the U.S. government’s position, and has drawn the attention of numerous commentators, including John Ruggie, the former UN Special Representative on business and human rights, who views Shell’s position as “extraordinarily far-reaching.”

Shell’s views raise the stakes of the case.  Its stance on corporate liability departs from more than fifteen years of corporate ATS jurisprudence.  But Shell’s proposed rule on extraterritoriality would be an even more profound reversal, departing from more than thirty years of ATS case law. 

The first seminal ATS case—Filártiga, considered the Brown v. Board of international human rights litigation in U.S. courts—launched the modern era of ATS jurisprudence in 1980.  Dolly Filártiga brought her case in New York against the Paraguayan police official who had tortured her brother to death.  The court’s decision was rooted in the notion that today’s torturers, like eighteenth century pirates, are the enemies of all mankind.  Filártiga was endorsed by the Supreme Court in its 2004 ATS decision, Sosa v. Alaverez-Machain. 

The categorical rule now advanced by Shell would close the door to remedies for plaintiffs like Dolly Filártiga, who wrote before Sosa: “I am proud to live in a country where human rights are respected, where there is a way to bring to justice people who have committed horrible atrocities.  Now it is up to the Supreme Court to ensure that truth will continue to triumph over terror.”  Her sentiments remain as moving today as they did then.

What might happen?

As with so many cases, it is difficult to make predictions, but most commentators are focused on Justice Anthony Kennedy as the critical swing vote.  Justice Kennedy has been a supporter of international law and joined the majority in Sosa, which allowed ATS claims to proceed in narrow circumstances for well-recognized violations of international law.  At the same time, Justice Kennedy and the Court have been notably sympathetic to corporate interests in recent years.  After Monday, we may have a better sense of what to expect in Kiobel. 

The Sosa Court left the door ajar to ATS suits for universal violations, whether piracy or genocide, whether committed outside the United States or within its borders.  This Court should do the same.  Survivors of torture, extrajudicial killing, crimes against humanity, and war crimes deserve the opportunity to obtain justice in U.S. courts, just as Dolly Filártiga did more than thirty years ago.   

Tyler Giannini and Susan Farbstein are the co-directors of the International Human Rights Clinic at Harvard Law School.  They are currently co-counsel in two Alien Tort Statute cases and have submitted amicus curiae briefs in numerous others, including in support of the Petitioners in Kiobel v. Royal Dutch Petroleum Co.  Giannini served as one of the architects of Doe v. Unocal, a precedent-setting suit that settled in 2005.  Farbstein was a member of the legal team in Wiwa v. Royal Dutch Petroleum Co., the companion case to Kiobel that settled in 2009.   

Could this Supreme Court term be The One Percent Court on steroids?

The United States Supreme Court term that starts Monday is packed with cases with the potential to restrict corporate accountability and limit everyday Americans’ civil rights and access to justice.  According to a report released today by the Alliance for Justice “the majority on the court is likely to live down to its full potential,” says AFJ President Nan Aron.

“With polling showing the public increasingly fearful that corporations are receiving favorable treatment, the Court risks drifting further from the American mainstream and jeopardizing the legitimacy of its decisions,” Aron said.

The report, available here, comes on the same day AFJ previews its documentary Unequal Justice: The Relentless Rise of the 1% Court, at American University’s Washington College of Law.  The screening, at noon today, will be followed by a panel discussion.

“The documentary describes a 40-year campaign by big business to put its thumb on the scales of justice,” Aron said.  “AFJ’s Supreme Court Preview documents how the campaign may reach its zenith in the term that starts Monday.

"Decisions this term could harm the ability of consumers, victims of discrimination, victims of human rights abuses and many others to stand up for their rights in court,” Aron said.  “This could be The One Percent Court on steroids.”

● AFJ’s Supreme Court Preview.

● Information about AFJ’s First Monday Film: Unequal Justice:The Relentless Rise of the 1% Court.

● Information about today’s screening and panel discussion.

● AFJ Supreme Court poll results.