Amicus Curiae Brief — Jesner v. Arab Bank, PLC, 138 S. Ct. 52 (2017) (No. 16-499)

— —

FILED

JUN 27 2017

i’ mete tig

No. 16-499

IN THE

Supreme Court of the United States

JOSEPH JESNER et al.,

Petitioners,

v

ARAB BANK, PLC,

Respondent.

— — .

On Writ of Certiorari

to the United States Court of Appeals for the

Second Circuit

BRIEF OF CONSTITUTIONAL

ACCOUNTABILITY CENTER AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

June 27, 2017 * Counsel of Record

— . — k TT a a ESE

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WasiincTon, D C. 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......... —

INTEREST OF AMICUS CURA EK...

I.

III.

THE ALIEN TORT STATUTE BROADLY

PERMITS SUIT FOR VIOLATIONS OF

THE LAW OF NATIONS AND DOES NOT

IMMUNIZE ANY CLASS OF DEFEND-

. THE ALIEN TORT STATUTE ALLOWS

FOR CORPORATE LIABIULITY CON-

SISTENT WITH LONGSTANDING

PRINCIPLES OF CORPORATE PER-

THERE IS NO CORPORATE EXCEPTION

TO FUNDAMENTAL INTERNATIONAL

(i)

10

8

TABLE OF AUTHORITIES

Page(s)

Cases

Argentine Republic v. Amerada Hess

Shipping Corp.,

ee 2,5

Bank of United States v. Deveaux,

9 U.S. (5 Cranch.) 61 (1809) ...................... 13

Chestnut Hill & Spring House Tpk. Co. v.

Rutter,

4 Serg. & Rawle 6 (Pa. 1818 10, 11, 14

Cook Cty. v. United States ex rel. Chandler,

re 12

Doe v. Exxon Mobil Corp.,

654 F.3d 11 (D.C. Cir. 2011).................... 17

Doe v. Exxon Mobil Corp.,

527 F. App’x 7 (D.C. Cir. 2013)................ 17

Filartiga v. Pena-Irala,

630 F.2d 876 (2d Cir. 19800) 17

Flomo v. Firestone Nat'l Rubber Co.,

643 F.3d 1013 (7th Cir. 2011)........... 9, 15, 17

Hertz Corp. v. Friend,

TT een 12

Khulumani v. Barclay Nat'l Bank Lid.,

504 F.3d 254 (2d Cir. 2007) 16

Kiobel v. Royal Dutch Petroleum Co.,

133 S. Ct. 1669 (201. passim

TABLE OF AUTHORITIES - cont’d

Page(s)

Kiobel u. Royal Dutch Petroleum Co.,

621 F.3d 111 (2d Cir. 2010) ....................... 4,15

Lake Shore & Mich. S. Ry. Co. v. Prentice,

I . 12

Louisville, Cincinnati, & Charleston R. R.

Co. v. Letson,

43 U.S. (2 How.) 497 (1844)...................... 13

Marshall v. Balt. & Ohio R. R. Co.,

57 U.S. (16 How.) 314 (18543) 3, 13

Mohamad v. Palestinian Auth.

e 6

Nat! Bank v. Graham,

r . 12

Phila., Wilimington, & Balt. R. R. Co. v.

Quigley,

62 U.S. (21 How.) 202 (1858)............. 10, 12

Providence Bank v. Billings,

29 U.S. (4 Pet.) 514 (1830) 3

Riddle v. Proprietors of Merrimack River

Locks and Canals,

J 11

Salt Lake City v. Hollister,

1 —— 14

Sosa v. Alvarez-Machain,

ZZ r passim

Tel-Oren v. Libyan Arab Republic,

726 F.2d 774 (D.C. Cir. 1984).................... 2, 6

iv

TABLE OF AUTHORITIES - cont’d

Page(s)

The Malek Adhel,

43 U.S. (2 How.) 210 (1844) 4, 9, 14

The Mariana Flora,

24 U.S. (11 Wheat.) 1 (1825) 9

The Nereide,

13 U.S. (9 Cranch) 388 (1815) ................... 3

Trs. of Dartmouth Coll. v. Woodward,

17 U.S. (4 Wheat.) 518 (1819) 11

United States v. Amedy,

24 U.S. (11 Wheat.) 392 (1826).................. 9

Whiteman v. Wilmington &

Susquehanna R.R. Co.,

D iietintcrcsteisintecntenccsensecssonsecee 11

8 1Lecislatirg Material

Alien Tort Statute,

28 U. S. C. § 1360. . . . .. . . . . . passim

Books, Articles, and Other Authorities

1 William Blackstone, Commentaries on

the Laws of England (1765) 10

4 William Blackstone, Commentaries on

the Laws of England (1765) 9

2 The Debates in the Several State Conven-

tions on the Adoption of the Federal Con-

stitution (Jonathan Elliot ed., 1836).......... 8

The Federalist No. 42 (Clinton Rossiter ed.,

r 6

*

TABLE OF AUTHORITIES - cont’d

Page(s)

The Federalist No. 80 (Clinton Rossiter ed.,

. 3, 8, 9

Kent Greenfield, In Defense of

Corporate Persons,

30 Const. Comment. 309 (2015) ................ 3

21 Journals of the Continental Congress

1774-1789 (Gaillard Hunt ed., 1912) 7

1 Stewart Kyd, Treatise on the Law of Cor-

77 12

J. Madison, Journal of the Constitutional

Convention (E. Scott ed., 189397“ 6

Mexican Boundary - Diuersion of

te Rio Grande,

26 Op. Att’y Gen. 250 (1907) 17

1

INTEREST OF AMICUS CURIAE'

Amicus Constitutional Accountability Center

(CAC) is a think tank, public interest law firm, and

action center dedicated to fulfilling the progressive

promise of our Constitution’s text and history. CAC

works in our courts, through our government, and

with legal scholars to improve understanding of the

Constitution and preserve the rights and freedoms it

guarantees. CAC accordingly has a strong interest in

this case.

SUMMARY OF ARGUMENT

According to the complaint in this case, Arab

Bank, a multinational corporation based in Jordan,

knowingly used its New York branch to finance in-

ternational terrorism that led to suicide bombings

and other attacks that resulted in the death, capture,

or injury of thousands of innocent civilians. Victims

of these terrorist attacks, their family members, and

representatives of their estates all sued under the Al-

ien Tort Statute (ATS), which allows the federal dis-

trict courts to hear suits for torts “committed in viola-

tion of the law of nations,” 28 U.S.C. § 1350. The

Second Circuit, however, held that no one could sue

simply because the Bank is a corporation. The Sec-

ond Circuit's reasoning is triply flawed: it cannot be

The parties have consented to the filing of this brief and

their letters of consent have been filed with the Clerk. Under

Rule 37.6 of the Rules of this Court, amicus states that no coun-

sel for a party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other

than amicus or its counsel made a monetary contribution to its

preparation or submission.

2

squared with the text of the ATS; it cannot be

squared with the purpose of the ATS, which was to

provide a federal forum to redress violations of inter-

national law, ensuring a remedy for the “handful of

heinous actions” that violatell definable, universal

and obligatory norms,” Tel-Oren v. Libyan Arab Re-

public, 726 F.2d 774, 781 (D.C. Cir. 1984) (Edwards,

J., concurring); and it cannot be squared with funda-

mental principles of corporate personhood that allow

corporations to be sued for wrongdoing.

First, the ATS confers on federal district courts

“original jurisdiction of any civil action by an alien for

a tort only, committed in violation of the law of na-

tions or a treaty of the United States.” 28 U.S.C.

§ 1350. Significantly, that language “does not distin-

guish among classes of defendants,” Argentine Repub-

lic v. Amerada Hess Shipping Corp., 488 U.S. 428,

438 (1989), permitting suits against all defendants,

including corporations and other artificial entities.

To create an exception to the ATS barring all suits

against corporations—entities that, like other private

actors, are bound by fundamental international

norms held by all civilized nations, such as prohibi-

tions against piracy, slavery, genocide, or financing of

terrorism—would require rewriting the terms of the

ATS.

Second, the ATS was the Framers’ considered re-

sponse to the systematic failure of the dysfunctional

Articles of Confederation government to enforce the

law of nations, a failure which, all too often, drew the

new nation into international conflicts. The ATS

provided a federal remedy, reflecting that “the peace

of the WHOLE ought not to be left at the disposal of a

PART. The Union will undoubtedly be answerable to

foreign powers for the conduct of its members. And

the responsibility for an injury ought ever to be ac-

3

companied with the faculty of preventing it“ The

Federalist No. 80, at 444 (Alexander Hamilton) (Clin-

ton Rossiter ed., 1961). “The First Congress, which

reflected the understanding of the framing generation

and included some of the Framers, assumed that fed-

eral courts could properly identify some international

norms as enforceable in the exercise of § 1350 juris-

diction,” Sosa v. Alvarez-Machain, 542 U.S. 692, 730

(2004), reflecting that the law of nations is a part

of the law of the land,” The Nereide, 13 U.S. (9

Cranch) 388, 423 (1815).

Third, permitting those victimized by corpora-

tions that violate the law of nations to sue under the

ATS is compelled by longstanding principles of corpo-

rate personhood dating back to the Founding-era,

which recognize that “[t]he great object of an incorpo-

ration is to bestow the character and properties of in-

dividuality on a collective and changing body of men,”

Providence Bank v. Billings, 29 U.S. (4 Pet.) 514, 562

(1830), including by making a corporation accounta-

ble in the courts for torts committed by corporate ac-

tors. “The necessities and conveniences of trade and

business require that such numerous associates and

stockholders should act by representation, and have

the faculty of contracting, suing, and being sued in a

factitious or collective name. But these important

faculties . . . cannot be wielded to deprive others of

acknowledged rights.” Marshall v. Balt. & Ohio R. R.

Co., 57 U.S. (16 How.) 314, 327 (1854).

It has been a basic precept of American law since

the Founding that corporate personhood ensures that

corporations can be brought to account for violating

the rights of individuals. See Kent Greenfield, In De-

fense of Corporate Persons, 30 Const. Comment. 309,

315 (2015) (observing that an “aspect of corporate

personhood is to create a mechanism in law to hold

4

corporations accountable”). Reading corporations out

of the class of defendants suable in federal court un-

der the ATS for violations of the law of nations does

violence to these foundational rules. Under the Sec-

ond Circuit’s rule, “one who earns profits by commer-

cial exploitation of abuse of fundamental human

rights can successfully shield those profits from vic-

tims’ claims for compensation simply by taking the

precaution of conducting the heinous operation in the

corporate form.” Kiobel v. Royal Dutch Petroleum

Co., 621 F.3d 111, 149-50 (2d Cir. 2010) (Leval, J.,

concurring), affd on other grounds, 133 S. Ct. 1659

(2013).

Businesses do not have a free pass under the ATS

to “trade in or exploit slaves, employ mercenary ar-

mies to do dirty work for despots, perform genocides

or operate torture prisons,” or, as in this case, finance

international terrorism, “all without civil liability to

victims.” Jd. at 150 (Leval, J., concurring). Indeed,

the paradigmatic violations of international law that

led the First Congress to enact the ATS—“violation of

safe conducts, infringement of the rights of ambassa-

dors, and piracy,” Kiobel, 133 S. Ct. at 1666 (citation

omitted) often involved companies rather than indi-

viduals. During the early Republic, this Court en-

forced the international prohibition of piracy in in

rem admiralty proceedings, requiring shipping com-

panies to forfeit ships that had engaged in piracy. It

did not matter that the individual ship owner claimed

innocence. “The vessel which commits the aggression

is treated as the offender, as the guilty instrument or

thing to which the forfeiture attaches, without any

reference whatsoever to the character or conduct of

the owner.” The Malek Adhel, 43 U.S. (2 How.) 210,

233 (1844).

5

To be sure, this Court has set a high bar to suit

under the ATS, see Kiobel, 133 S. Ct. at 1669 (requir-

ing that ATS suit “touch and concern the territory of

the United States. . with sufficient force to displace

the presumption against extraterritorial applica-

tion”); Sosa, 542 U.S. at 732 (holding that “federal

courts should not recognize private claims under fed-

eral common law for violations of any international

law norm with less definite content and acceptance

among civilized nations than the historical paradigms

familiar when § 1350 was enacted”), but a case can-

not be dismissed under the ATS solely on the ground

that the defendant is a corporation. The judgment of

the Second Circuit should therefore be reversed.

ARGUMENT

I. THE ALIEN TORT STATUTE BROADLY

PERMITS SUIT FOR VIOLATIONS OF THE

LAW OF NATIONS AND DOES NOT IM-

MUNIZE ANY CLASS OF DEFENDANTS.

The ATS confers on federal district courts “origi-

nal jurisdiction of any civil action by an alien for a

tort only, committed in violation of the law of nations

or a treaty of the United States.” 28 U.S.C. § 1350.

As its text makes clear, and as this Court has recog-

nized, the ATS broadly permits suits for violations of

the law of nations and does not immunize any class of

defendants, including corporations, from suit. Argen-

tine Republic, 488 U.S. at 438 (the ATS “does not dis-

tinguish among classes of defendants”). Significantly,

the statute explicitly identifies the plaintiffs who may

sue (“an alien”) and the cause of action that may be

brought (“a tort only committed in violation of the law

of nations or a treaty of the United States”), but does

not limit at all the class of defendants suable under

the ATS.

6

Because nothing in the text of the ATS expressly

limits its scope to individuals, artificial entities, in-

cluding corporations, can be sued for tortious acts

that violate “specific, universal, and obligatory” in-

ternational norms. See Kiobel, 133 S. Ct. at 1665

(quoting Sosa, 542 U.S. at 732); cf. Mohamad v. Paul-

estinian Auth., 132 S. Ct. 1702, 1705 (2012) (holding

that the Torture Victim Protection Act, which author-

izes suit against an “individual,” “encompasses only

natural persons” and “does not impose liability

against organizations”). To exclude corporations from

the scope of the ATS would require rewriting its

terms.

The statutory scheme set out in the ATS reflects

the concerns that led the First Congress to enact it in

the first place. The Constitution’s Framers, many of

whom served in the First Congress, wrote the ATS

because they were gravely ſcloncernled] that state

courts might deny justice to aliens, thereby evoking a

belligerent response from the alien’s country of

origin,” and they wanted “to assure aliens access to

federal courts to vindicate any incident which, if mis-

handled by a state court, might blossom into an in-

ternational crisis.“ Tel-Oren, 726 F.2d at 782 (Ed-

wards, J., concurring); Pet'r Br. at 22-23.

Indeed, under the dysfunctional government of

the Articles of Confederation, the law of nations was

a dead letter in the United States, potentially imper-

iling the new nation in conflicts with foreign nations.

“The Continental Congress was hamstrung by its in-

ability to ‘cause infractions of treaties, or of the law of

nations to be punished.” Sosa, 542 U.S. at 716 (quot-

ing J. Madison, Journal of the Constitutional Conven-

tion 60 (E. Scott ed., 1893)). James Madison lament-

ed that the Articles “contain no provision for the case

of offenses against the law of nations; and conse-

7

quently leave it in the power of any indiscreet mem-

ber to embroil the Confederacy with foreign nations.”

The Federalist No. 42, at 233.

In 1781, the Continental Congress “implored the

States to vindicate rights under the law of nations.”

Sosa, 542 U.S. at 716. Congress urged state legisla-

tures to “provide expeditious, exemplary and ade-

quate punishment” for (1) “the violation of safe con-

ducts or passports,” (2) “the commission of acts of

hostility against such as are in amity, league or truce

with the United States,” (3) “the infractions of the

immunities of ambassadors and other public minis-

ters”; and (4) “infractions of treaties and conventions

to which the United States are a party.” 21 Journals

of the Continental Congress 1774-1789, at 1136-37

(Gaillard Hunt ed., 1912). This list was not designed

to be comprehensive, but included “only those offenc-

es against the law of nations which are most obvi-

ous.” Id. at 1137. The resolution also recommended

that states authorize “suits to be instituted for dam-

ages by the party injured.” Jd. The states refused,

and “concern over the inadequate vindication of the

law of nations persisted through the time of Constitu-

tional Convention.” Sosa, 542 U.S. at 717.

Throughout this period, the failure to enforce in-

ternational law led to a number of “notorious episodes

involving violations of the law of nations.” Kiobel,

133 S. Ct. at 1666. Incidents, such as the Marbois

affair of 1784, in which a Frenchman in the United

States assaulted Francis Barbe Marbois, the Secre-

tary of the French Foreign Legion, leading the gov-

ernment of France to demand redress, see id., con-

vinced the Framers of the need for a federal judiciary

empowered to enforce federal treaties as well as the

law of nations.

8

During the debates about whether Pennsylvania

should ratify the Constitution, James Wilson insisted

that we “will show the world that we make the faith

of treaties a constitutional part of the character of the

United States; that we secure its performance no

longer nominally, for the judges of the United States

will be enabled to carry it into effect, let the legisla-

tures of the different states do what they may.” 2 The

Debates in the Several State Conventions on the Adop-

tion of the Federal Constitution 490 (Jonathan Elliot

ed., 1836). Likewise, Alexander Hamilton argued

that fals the denial or perversion of justice by the

sentences of courts, as well as in any other manner, is

with reason classed among the just causes of war, it

will follow that the federal judiciary ought to have

cognizance of all causes in which the citizens of other

countries are concerned.” The Federalist No. 80, at

444. “So great a proportion of the cases in which for-

eigners are parties involve national questions that it

is by far most safe and most expedient to refer all

those in which they are concerned to the national tri-

bunals.” Id. at 445.

In 1789, the First Congress made good on the

Framers’ promises to ensure proper enforcement of

the law of nations in federal court. To redress past

abuses, and prevent new violations of the law of na-

tions from arising, the First Congress enacted the

ATS, expecting it to “have practical effect the moment

it became law.” Sosa, 542 U.S. at 724. “The First

Congress understood that the district courts would

recogn ee private causes of action for certain torts in

violation of the law of nations,” id., including “three

principal offenses against the law of nations’ [that]

had been identified by Blackstone: violation of safe

conducts, infringement of the rights of ambassadors,

and piracy.” Kiobel, 133 S. Ct. at 1666 (quoting Sosa,

9

542 U.S. at 723, 724); id. at 1674 (Breyer, J., concur-

ring) (“[T]he statute’s language, history, and purposes

suggest that the statute was to be a weapon in the

‘war against those modern pirates who, by their con-

duct, have declarſed] war against all mankind.”

(quoting 4 William Blackstone, Commentaries on the

Laws of England *71)).

Significantly, because “the Union [would] un-

doubtedly be answerable to foreign powers for the

conduct of its members,” Federalist No. 80, at 444,

the First Congress made sure the ATS was all-

encompassing. See United States v. Amedy, 24 U.S.

(11 Wheat.) 392, 412 (1826) (“[t]he mischief intended

to be reached by the statute is the same, whether it

respects private or corporate persons’ (emphasis in

original)). After all, a stringent limitation on this

federal remedy—denying suit against an entire class

of defendants and thus allowing corporations to vio-

late the law of nations with impunity, no matter the

particular violation of international law alleged—

would have undercut the ATS’s raison d'etre and re-

sulted in the very evils the ATS sought to prevent.

Indeed, liability for corporations under the ATS

finds strong support in this Court’s early case law,

which enforced the international prohibition of pira-

cy-—one of the paradigmatic violations that the ATS

aimed to redress—against ships in in rem admiralty

proceedings, condemning ships run by companies

that had engaged in piracy. Reasoning that pirates

are “common enemies of all mankind,” this Court

held that a “piratical aggression by an armed vessel

sailing . may be justly subjected to the penalty of

confiscation for such a gross breach of the law of na-

tions.” The Mariana Flora, 24 U.S. (11 Wheat.) 1, 40-

41 (1825). Liability attached to the ship itself, and

thus the shipping company that operated it, regard-

10

less of the owner’s claim of innocence. As Justice Sto-

ry explained, “[t]he vessel which commits the aggres-

sion is treated as the offender, as the guilty instru-

ment or thing to which the forfeiture attaches, with-

out any reference whatsoever to the character or con-

duct of the owner.” The Malek Adhel, 43 U.S. (2

How.) at 233; see Flomo v. Firestone Nat l Rubber Co.,

643 F.3d 1013, 1021 (7th Cir. 2011) (“And if prece-

dent for imposing liability for a violation of customary

international law by an entity that does not breathe

is wanted, we point to in rem judgments against pi-

rate ships. Of course the burden of confiscation of a

pirate ship falls ultimately on the ship’s owners, but

similarly the burden of a fine imposed on a corpora-

tion falls ultimately on the shareholders.” (citations

omitted)); Pet’r Br. at 25-26.

Thus, corporate liability under the ATS is con-

sistent with both the text and history of the Act. It is

also compelled by longstanding principles of corpo-

rate personhood, which permits corporations to be

sued for tortious conduct, such as is alleged in this

case. The next Section discusses these principles.

II. THE ALIEN TORT STATUTE ALLOWS FOR

CORPORATE LIABIULITY CONSISTENT

WITH LONGSTANDING PRINCIPLES OF

CORPORATE PERSONHOOD.

Reading the ATS as written is also consistent

with basic principles of corporate personhood that en-

sure corporate accountability. When Congress enact-

ed the ATS, it was understood that corporations could

sue to vindicate their legal rights, and that they could

be sued to hold them accountable for violating the

rights of others. [From the earliest times to the

present, corporations have been held liable for torts.”

Chestnut Hill & Spring House Tpk. Co. v. Rutter, 4

Serg. & Rawle 6, 17 (Pa. 1818). This was not an

11

American invention, but a reflection of English com-

mon law principles that the Founders brought with

them to the United States. See, e.g., 1 William Black-

stone, Commentaries on the Laws of England *463

(1765) (explaining that corporations may “sue or be

sued . . . and do all other acts as natural persons

may”); see Phila., Wilimington, & Balt. R. R. Co. v.

Quigley, 62 U.S. (21 How.) 202, 210 (1858) (“At a very

early period, it was decided in Great Britain, as well

as in the United States, that actions might be main-

tained against corporations for torts; and instances

may be found, in the judicial annals of both countries,

of suits for torts arising from the acts of their agents,

of nearly every variety.”); Pet'r Br. at 18-19. Relying

on these principles, courts refused to permit corpora-

tions to “do wrong without being amenable to justice,”

relying on the corporate form “to hold them responsi-

ble.” Chestnut Hill, 4 Serg. & Rawle at 16. Courts

considered it “unjust to society, as well as unreasona-

ble in itself, to suffer [corporations] to escape the con-

sequences of direct injuries inflicted upon citizens by

their agents in the prosecution of their business.”

Whiteman v. Wilmington & Susquehanna R.R. Co., 2

Del. 514, 521 (1839).

At the Founding, as Chief Justice John Marshall

recognized, a corporation was considered “an artificial

being, invisible, intangible, and existing only in the

contemplation of the law” endowed with “immortality

and . . . individuality; properties, by which a perpetu-

al succession of many persons are considered as the

same, and may act as a single individual.” Trs. of

Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.)

518, 636 (1819). The capacity to sue and be sued was

viewed as a critical part of corporate personhood, as

treatise writers and courts recognized. Id. at 667

(opinion of Story, J.) (“[I]t possesses the capacity of

12

perpetual succession, and of acting by the collected

vote or will of its component members, and of suing

and being sued in all things touching its corporate

rights and duties.”); Riddle v. Proprietors of Merri-

mack River Locks and Canals, 7 Mass. 169, 187

(1810) (“It is one of these maxims, that a man special-

ly injured by the breach of duty in another, shall have

his remedy by action. [Why should a corporation,

receiving its corporate powers and obliged by its cor-

porate duties with its own consent, be an exception,

when it has, or must be supposed to have, an equiva-

lent for its consent?”’); 1 Stewart Kyd, Treatise on the

Law of Corporations 13 (1793) (discussing capacity of

corporations to suſel and be[] sued”).

As these cases reflect, from the Founding on, the

“common understanding” was that “corporations were

‘persons in the general enjoyment of the capacity to

sue and be sued.” Cook Cty. v. United States ex rel.

Chandler, 538 U.S. 119, 125 (2003). Accordingly, “for

acts done by the agents of a corporation, in the course

of its business and of their employment, the corpora-

tion is responsible in the same manner and to the

same extent as an individual is responsible under

similar circumstances.” Lake Shore & Mich. S. Ry.

Co. v. Prentice, 147 U.S. 101, 109 (1893). “As a neces-

sary correlative to the principle of the exercise of cor-

porate powers and faculties by legal representatives,

is the recognition of a corporate responsibility for the

acts of those representatives.” Phila., Wilmington, &

Balt. R. R. Co., 62 U.S. (21 How.) at 210. Under these

principles, “[clorporations are liable for every wrong

they commit.” Natl Bank v. Graham, 100 U.S. 699,

702 (1879).

In a trio of important cases, the Supreme Court

considered whether corporations were citizens enti-

tled to sue or be sued under the diversity jurisdiction

13

conferred on federal courts by the Judiciary Act of

1789. See Hertz Corp. v. Friend, 559 U.S. 77, 84-85

(2010) (surveying the line of cases). The upshot of

these cases was that “for diversity purposes, the fed-

eral courts considered a corporation to be a citizen of

the State of its incorporation” and hence could sue or

be sued in federal court consistent with basic princi-

ples of corporate personhood. Id. at 85.

Initially, in Bank of United States v. Deveaux, 9

U.S. (5 Cranch.) 61 (1809), this Court held that a cor-

poration, being an “invisible, intangible, and artificial

being,” is “certainly not a citizen.” Id. at 86. But it

held that corporations could sue or be sued in diversi-

ty cases based on “the character of the individuals

who compose the corporation,” id. at 92, reasoning

that the term citizen ought to be understood. to

describe the real persons who come into court. un-

der the corporate name.” Id. at 91. Deveauæ s rule,

which recognized that corporations could sue or be

sued in diversity, but required courts to engage in

time-consuming inquiries into the citizenship of the

shareholders of the corporation, was widely criticized

and proved short-lived.

In Louisville, Cincinnati, & Charleston R.R. Co.

v. Letson, 43 U.S. (2 How.) 497 (1844), this Court

overruled Deveaux, holding that “a corporation creat-

ed by and doing business in a particular state” is “a

person, although an artificial person, an inhabitant of

the same state, for the purposes of its incorporation,

capable of being treated as a citizen of that state, as

much as a natural person.” Id. at 558. Letson made

clear that a corporation was a “citizen of the state

which created it, and where its business is done, for

all the purposes of suing and being sued,” drawing

heavily on Dartmouth College’s discussion of corpo-

rate personhood. Id.

14

In Marshall v. Balt. & Ohio R. R. Co., this Court

reaffirmed Letson’s rule that corporations should be

treated as citizens of the state of their incorporation,

permitting them to sue or be sued in diversity cases

consistent with basic principles of corporate person-

hood. The necessities and conveniences of trade and

business require that such numerous associates and

stockholders should act by representation, and have

the faculty of contracting, suing, and being sued in a

factitious or collective name.“ Marshall, 57 (16 How.)

at 327. This rule, this Court explained, was neces-

sary to ensure that individuals could go to federal

court to hold out-of-state corporations accountable for

legal wrongs they commit. “If it were otherwise it

would be in the power of every corporation, by elect-

ing a single director residing in a different State, to

deprive citizens of other States with whom they have

controversies, of this constitutional privilege, and

compel them to resort to State tribunals in cases in

which, of all others, such privilege may be considered

most valuable.” Jd. at 328.

In short, it has been the law for centuries that

corporations are liable for the torts committed by cor-

porate actors. Under these long-established princi-

ples, corporations are liable under the ATS for torts

committed in violation of the law of nations to the

same extent individuals are. Corporate liability en-

sures that entities that flout the law can be called to

account; such liability, as in this Court’s piracy cases,

is the “only adequate means of suppressing the of-

fence or wrong, or insuring an indemnity to the in-

jured party.” The Malek Adhel, 43 U.S. (2 How.) at

233. It has never been the law that an injured plain-

tiff may only proceed against an individual corporate

actor, as that would be “mischievous in its conse-

quences” for a “company may do great injury,” by

15

means of those “who have no property to answer the

damages recovered against them.” Chestnut Hill, 4

Serg. & Rawle at 17. When corporate actors commit

“arbitrary exercises of power in the nature of

torts, ... the corporation may be held to a pecuniary

responsibility for them to the party injured.” Salt

Lake City v. Hollister, 118 U.S. 256, 261 (1886). Re-

writing the ATS to afford corporations an absolute

immunity from suit for violating the law of nations—

even where, as alleged here, a corporation flouts long

established, obligatory, and definite international

norms held by all civilized nations—would imperil

this fundamental principle.

III. THERE IS NO CORPORATE EXCEPTION

TO FUNDAMENTAL INTERNATIONAL

NORMS.

Rather than follow the text and history of the

ATS and fundamental principles of corporate liabil-

ity, the Second Circuit manufactured a corporation

exception to the federal remedy provided by the ATS.

Relying on its earlier decision in Kiobel, the Second

Circuit held that “federal courts lack jurisdiction over

ATS suits against corporations,” Cert. Pet. App. 19a,

because, it claimed, “no corporation has ever been

subject to any form of liability (whether civil, crimi-

nal, or otherwise) under the customary international

iaw of human rights.” Id. at 15a (quoting Kiobel, 621

F.3d at 148). This is wrong.

To start, the Second Circuit asked the wrong

question. International law, including treaties for-

bidding the sort of financing of terrorism at issue

here, establishes legal rules, but it leaves implemen-

tation of those rules to each nation. “International

law. . . consists primarily of a sparse body of norms,

adopting widely agreed principles prohibiting conduct

universally agreed to be heinous and inhumane.

16

Having established these norms of prohibited con-

duct, international law says little or nothing about

how those norms should be enforced.” Kiobel, 621

F.3d at 152 (Leval, J., concurring). As Judge Pooler

observed below, “[c]ustomary international law does

not contain general norms of liability or non-liability

applicable to actors.” Cert. Pet. App. 5la (Pooler, J.,

dissenting from the denial of rehearing en banc);

Flomo, 643 F.3d at 1019 (If a plaintiff had to show

that civil liability for such violations was itself a

norm of international law, no claims under the Alien

Tort Statute could ever be successful, even claims

against individuals; only the United States, as far as

we know, has a statute that provides a civil remedy

for violations of customary international law.“); Pet'r

Br. at 32.

Some nations do not provide for civil liability to

redress violations of international law. But ours

does. By adopting the ATS, our law provides a feder-

al forum to hold civilly liable those, including corpo-

rations, whose tortious acts violate specific, universal,

and obligatory prohibitions of the law of nations. As

this Court’s decision in Kiobel made clear, the ques-

tion in ATS cases “is not whether a federal court has

jurisdiction to entertain a cause of action provided by

foreign or even international law. The question is in-

stead whether the court has authority to recognize a

cause of action under U.S. law to enforce a norm of

international law.” Kiobel, 133 S. Ct. at 1666; see id.

at 1633 (observing that federal courts, under the

ATS, “may ‘recognize private claims under federal

common law” (quoting Sosa, 542 U.S. at 732)); Khu-

lumani v. Barclay Natl Bank Lid., 504 F.3d 254, 265

(2d Cir. 2007) (Katzmann, J., concurring) (“[Ajll

[ATS] litigation is in fact based on federal common

law... ). Consistent with longstanding principles

17

of corporate liability, corporations may be held liable

to the same extent as individuals under the ATS’s

federal common law cause of action.

Moreover, even if the Second Circuit had asked

the correct question, its answer would still be wrong,

because it failed to recognize that international

norms do constrain the acts of corporations. As far

back as 1907, the Attorney General of the United

States opined that citizens of Mexico had been in-

jured by a corporation’s violation of a treaty between

the United States and Mexico. Mexican Boundary-

Diversion of the Rio Grande, 26 Op. Att'y Gen. 250

(1907). Pointing to the ATS, the Attorney General

wrote that “existing statutes provide a right of action

and a forum.” Id. at 252; Pet’r Br. at 24.

Human rights violations by German corporations

that aided the Nazi war effort provide yet another

example. In the aftermath of World War II, “the al-

lied powers dissolved German corporations that had

assisted the Nazi war effort, along with Nazi gov-

ernment and party organizations—and did so on the

authority of customary international law.” Flomo,

643 F.3d at 1017; Doe v. Exxon Mobil Corp., 654 F.3d

11, 52 (D.C. Cir. 2011) Che Allies determined that

I. G. Farben had committed violations of the law of

nations and therefore destroyed it.”), vacated on other

grounds, 527 F. App’x 7 (D.C. Cir. 2013).

While some international norms apply only to

state actors or those who act in an official capacity

(which can include corporations as the case of I. G.

Farben illustrates), there is no rule of international

law that exempts corporations from the fundamental

commands of the law of nations that apply to all per-

sons. No corporation may enslave individuals, com-

mit genocide, engage in piracy, or, as in this case, fi-

nance international terrorism, without becoming an

18

“enemy of all mankind.” Sosa, 542 U.S. at 732 (quot-

ing Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir.

1980)). The Second Circuit erred in holding that cor-

porations may never be sued under the ATS.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

June 27, 2017 * Counsel of Record