Supreme Court To Hear The Mother of All Corporate Immunity Cases

[midnight]

Source: Think Progress


By Ian Millhiser on Oct 18, 2011 at 10:24 am
The Roberts Court is rightly mocked for its seemingly single-minded willingness to immunize corporations from the laws intended to protect ordinary Americans, but the question presented in a corporate immunity case the justices just agreed to hear is so stark that a decision granting such immunity would verge on self-parody. Or, at least, it would if the consequences of such a decision wouldn’t be so tragic and far-reaching.
Indeed, as Judge Pierre Leval explains, if the Supreme Court upholds a Second Circuit decision holding that corporations have total immunity from a law holding the most atrocious human rights violators accountable to international norms, it would enable corporations to profit freely from some of the greatest acts of evil imaginable:
According to the rule my colleagues have created, one who earns profits by commercial exploitation of abuse of fundamental human rights can successfully shield those profits from victims’ claims for compensation simply by taking the precaution of conducting the heinous operation in the corporate form. Without any support in either the precedents or the scholarship of international law, the majority take the position that corporations, and other juridical entities, are not subject to international law, and for that reason such violators of fundamental human rights are free to retain any profits so earned without liability to their victims. <...>
The new rule offers to unscrupulous businesses advantages of incorporation never before dreamed of. So long as they incorporate (or act in the form of a trust), businesses will now be free to trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot’s political opponents, or engage in piracy – all without civil liability to victims. By adopting the corporate form, such an enterprise could have hired itself out to operate Nazi extermination camps or the torture chambers of Argentina’s dirty war, immune from civil liability to its victims. By protecting profits earned through abuse of fundamental human rights protected by international law, the rule my colleagues have created operates in opposition to the objective of international law to protect those rights.
"Now that the Supreme Court has agreed to consider this issue, Exxon gets another bite at the apple. If the Roberts Court rules their way, Exxon may be the first corporation to celebrate the birth of Leval’s nightmare scenario."

Read more: http://thinkprogress.org/justice/2011/10/18/346449/supreme-court-to-hear-the-mother-of-all-corporate-immunity-cases/

[sakabatou]

1. Welcome to the new Plutocracy.

[canuckledragger]

2. K & R for visibility

[Uncle Joe]

3. Kicked and recommended.

Thanks for the thread, midnight.

[Scuba]

4. I predict a 5-4 ruling. n /t

[riderinthestorm]

7. I agree dammit, dammit, dammit. nt

[Raster]

42. But of course. The rethuglican members of the SCOTUS are there for one purpose...

...to protect the interests of the Lords of Money and their various sycophants, who have been carefully stacking the SCOTUS for years.

Just another example of why Albert Gore was NEVER going to be inaugurated as POTUS. The Lords of Money absolutely had to have their boy at 1600, and would have done ANYTHING to insure his "win."

[tk2kewl]

5. .

:puke:

[msongs]

6. Not LBN - this is an editorial/opinon piece nt

[midnight]

16. Thanks...

[denverbill]

8. Dang. A lot of German corporations would have loved this ruling post WWII.n/t

[SoapBox]

9. K & R nt

[me b zola]

10. K&R

[a simple pattern]

11. K&R

The Exxon Resistance Army will make sure no one is left alive to sue

[Jack Rabbit]

12. K/R

My own nightmare scenario is a corporation hiring Blackwater (or Xe, if you prefer) to keep the unwashed masses in line and start wars on their behalf.

[lunasun]

24. in what country? Cuz that sorta fits Iraq for Haliburton

[Jack Rabbit]

40. You're right, of course, but I was thinking of American streets

Imagine the outrage, and imagine the corporate CEO who contracted with Blackwater just lighting up a cigar and sipping his champagne where the press asks him about it, while Eric Prince stands behind him and counts his thirty pieces of silver.

[Nuclear Unicorn]

13. I was all prepared to be outraged except when I read the list of assumed offenses.

Indeed, as Judge Pierre Leval explains, if the Supreme Court upholds a Second Circuit decision holding that corporations have total immunity from a law holding the most atrocious human rights violators accountable to international norms, it would enable corporations...free to trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot’s political opponents, or engage in piracy – all without civil liability to victims.

Um. No. Those things are expressly forbidden under US law. I know lots of people will scream "Blackwater Xe!" but they were acting in agency to the US Dept of State. Whatever we may think about Bush/Cheney hiring Xe the fact is the ball is now decidedly in the Obama/Clinton court and they chose to renew the contracts and a democrat-controlled congress cut the check. No Supreme Court ruling will change that.

That being said, if you traffic in slaves in the US or as a US corporation trading in slaves abroad you are subject to prosecution in US courts. If you work as a gun-for-hire for a regime/organization listed on the State Department's dirty list your assets can be frozen and your officers tried in court.

I don't think corporate bodies should be immune to prosecution for wrongdoing and near as I can tell they are not unless there is corruption. But corruption isn't from a lack of laws but rather laws being circumvented by the very government we're demanding uphold the law. The fact is, the US government is not going to subject itself to a foreign law that it has not adopted with the advice and consent of 2/3 ofthe senate. Nor can it unless you amend the constitution which takes 2/3 of the senate and 3/4 of the state legislatures.

I would also add many of the prohibitions set-up in international treaties against slavery, torture etc are not abrogated by corporate status.

If this gets struck down I predict the reasoning will be because the "international laws" to which the OP speaks have not been ratified by the US. Get whatever international law you are looking to have enforced in the US ratified and the issue won't be an issue. Personally, I do not like the idea of international law governing my life unless my elected representatives have had a chance to debate and vote on that law. The word "corporation" isn't enough to make me go all a-flutter and accept some law that somebody else writes that I have no say in accepting. The international community may lose its mind one day and outlaw bacon but I'm still having a BLT.

[midnight]

15. Boy that's a relief... Can you post a link to that law that would forbid this...Thanks..

I would love that torture treaty to be fast tracked to private corporations running our prisons here in America... So that hopefully when this ruling is struck down, women in prisons will not have to through out their lower backs will being shackled during labor...

[Nuclear Unicorn]

17. Safety from cruel and unusual punishment is a constitutional right

See, no international treaty needed.

Just because someone has been incarcerated in a corporate prison doesn't mean they lose their constitutional rights and I've not seen anything to suggest they have. There may be incidences of rights being violated (ditto, publically-run institutions) but those are actionable and the victims are entitled to relief and the absence of international treaty won't make a whit of difference.

In fact, it's easier to sue corporations than it is to sue the government because government enjoys "sovereign immunity." If a CEO ordered his guards to starve prisoners to save money he can be held criminally liable and the corporation can be sued. If congress passed a law restricting prisoners to one meal a day the law can be overturned and civil awards paid but not one congressperson voting for that law would be subject to civil or crimial penalty.

[midnight]

21. Here is a link for you.

http://humanrights.uchicago.edu/chicagotorture/ "Um. No. Those things are expressly forbidden under US law." Do you have a link? Anyways it is nice to read your confidence that abuse is not allowed...

[Nuclear Unicorn]

26. No one said it didn't happen. I said the listed crimes are forbidden.

Theft is also forbidden and even though we have laws against it theft occurs on a daily basis. In fact, that there is a law forbidding anything is pretty much an admission it has already happened and is presumed to happen again.

I would also note that the officers in the link you provided were public officials, not private corporate employees or owners. I only mention this in reference to the OP, not as a point of nit-picking. As it seems to me the OP infers private corporations pose a peculiar threat to civil rights I'm not sure pointing out crimes committed by government officials offers a sure-fire, safe alternative.

I was speaking to the letter of the law, particularly constitutional injunctions against cruel and unusual punishment. It's there, it's in the document. Yes, I admit freely the document gets ignored and abused but the fact remains C&U punishments are forbidden. Sadly, lots of laws get ignored. We call the people who do such things criminals. The set of "international norms" mentioned in the OP will do nothing except restate laws that are already active in the US. At least in the US we can enforce these laws and those victimized can seek relief. "International norms" strikes me as so ethereal as to be meaningless. To whom does one complain over the violation of norms? A notional court? How would any international court enforce its judgment on a private citizen of a non-signatory nation? These are real, practical concerns that have to be considered as they will have ramifications.

My point is -- we are asking the Supremes to consider things that our own elected representatives have not debated and ratified. The absence of that debate and ratification is grounds for dismissing the case. If we want an internationally agreed upon set of standards to govern our prisons the president should send the State Dept. to negotiate the terms and then it should be submitted to the senate for ratification.

I for one do not want a precedent set where laws I have had no say in forming and adopting are imposed over me. I'm a Democrat, I'm kind of keen to this whole democracy thing.

[midnight]

35. You are right in saying it is forbidden. I was pointing out that unfortuately

publically and privately this abuse is not prevented.. And the link to April 14, 2004 hopefully illuminates this point for the private sector abuses.

"Just because someone has been incarcerated in a corporate prison doesn't mean they lose their constitutional rights and I've not seen anything to suggest they have."
Private and Public are blending... I only bring this up because the abuse is already here..April 14, 2004http://www.privateci.org/wisconsin.htm

" By protecting profits earned through abuse of fundamental human rights protected by international law, the rule my colleagues have created operates in opposition to the objective of international law to protect those rights."

You are correct in the fact that theft goes on daily...

I don't know why this seems to have been fast tracked to the supremes, and not legislated via our elected officials.. Makes me wonder what the heck is going on.... Does this sound like the Cititzens united act..

[Nuclear Unicorn]

38. A case can only be fast-tracked by request of a party to the case

The Supremes can bump as case up the docket if they feel it is sufficiently urgent, i.e. a national security issue, but that is rare and no one justice can make it happen on their own.

I don't see a CU connection here. If corporate personhood is an issue than this would *seem* to be a set-back for anyone hoping to hide behind corporate liability shields as persons have a different set of liabilities and corporations are supposed to separate personal and corporate assets.

The entire purpose of corporations is to sequester and separate part of your personal assets from civil liability (there are no protections from criminal liability). If you screw-up as a private citizen then your personal assets are liable, i.e. your family home. If you screw-up acting on behalf of a corporation then any assets dedicated to the use of that corporation are liable but your personal property (your family home) is immune.

CU was a serious evil but it may have been a necessary one. People have the right to their political voice and they have the right to it without fear of civil liability. Example, suppose MoveOn.org -- a corporation -- made a statement in good faith in opposition to a candidate and that statement threw the election to the candidate's opponent. Later it's revealed that the statement was totally bogus but a person acting in agency of MoveOn.org spread the statement knowing it was not true. The candidate would have grounds for relief. Unless MoveOn.org is allowed corporate status the officers of MoveOn would be personally liable. The aggrieved could personally ruin them rather than just the corporation. However, even though MoveOn is a corporation it has the right to political participation; just like a person because in reality it is a group of people coming together for political purposes.

The problem with CU, and what congress should address from a different angle, is CU -- a politically based corporation -- SHOULD be protected but strictly for-profit entities are being pulled along on that same rope and because of that the money continues to rot the system.

[truedelphi]

19. Thank you for all this informtion.

Will have to come back to it, a lot to consider.

[Laelth]

27. I don't think this case is about criminal prosecutions of corporations.

It's about civil liability. If the ruling is upheld, victims who sue the corporation for damages will lose because the Supreme Court will have granted immunity to the corporation from civil lawsuits. This case isn't about criminal law at all.

Besides, corporations are all effectively immune from criminal prosecution because you can not throw a corporation in prison. A D.A. can prosecute a corporate officer, but that officer will almost certainly have plausible deniability. That's why criminal prosecutions are seldom brought against corporate officers. Usually, the best you can do to a corporation is fine it for violating a criminal law. Corporations usually laugh off such fines and litigate them to death until the D.A. (who has very limited resources) gives up and settles for a fine that is a fraction of what might be appropriate. In fact, this effective immunity from criminal prosecution is one of the most desirable (and dangerous) aspects of a corporation.

-Laelth

[LooseWilly]

31. Reading further into the article, you'd notice this covers International Civil Liabilities...

In the case of international crimes, US laws are not applicable... except for the one cited in the article:

Kiobel v. Royal Dutch Petroleum, is a U.S. law known as the Alien Tort Statute which allows private parties to be sued for the very worst violations of international law.

This is the case that is going to be decided, and if the judgement allows immunity for corporations, then corporations will no longer be Civilly Liable for "the very worst violations of international law" should they feel like committing them.

In case you didn't bother to read beyond what was posted in the OP.

...
The centerpiece of this case, Kiobel v. Royal Dutch Petroleum, is a U.S. law known as the Alien Tort Statute which allows private parties to be sued for the very worst violations of international law. Nothing in this law distinguishes between violations by actual persons and violations by corporations — and indeed a footnote in a 2004 Supreme Court opinion strongly suggests that the opposite is true. Nor is there any international legal consensus granting lawsuit immunity to corporations. Rather, the Second Circuit’s majority seems to have invented a new corporate immunity doctrine out of whole cloth.
Moreover, lest there be any doubt, Judge Leval’s warning of the consequences of their decision is not hypothetical. Earlier this year, the DC Circuit parted ways with Leval’s colleagues — holding that corporations are not free to commit mass atrocities. Had the court gone the other way, it would have completed immunized Exxon from allegations that their agents committed shocking human rights violations while in Exxon’s employ:
In addition to extrajudicial killings of some of the plaintiffs-appellants’ husbands as part of a “systematic campaign of extermination of the people of Aceh by efendants’ security forces,” the plaintiffs-appellants were “beaten, burned, shocked with cattle prods, kicked and subjected to other forms of brutality and cruelty” amounting to torture, as well as forcibly removed and detained for lengthy periods of time.

...

Obviously, Exxon can't be prosecuted for murder... because it's a corporation. However, under the terms of Kiobel v. Royal Dutch Petroleum, they can be held civilly liable, and their pants can be sued off— unless the Supreme Court decides to grant corporate immunity from the application of this law.

Otherwise, the Court would essentially be deciding that only individual people are liable under this law, not corporate people... despite the fact that individual people can actually be extradited to face actual prosecution when they violate these international laws which, presumably, are also illegal in the state in which they were committed... with the obvious exception of US Govt. Officials who are above the law... which is, of course, a ridiculous assertion prone to elicit LOLs if one can deliver the argument with a straight face to a crowd.

An examination of the applicability of this law makes it obvious that it is, in fact, specifically corporations that it is meant to apply to, since there is no way to extradite a corporation or put it on trial in criminal court... only in civil court in the locality in which it is headquartered.

I would also add that the international treaties "against slavery, torture etc" that you refer to are treaties that require the governments involved to act to prosecute violations of those activities proscribed therein... but if the Supreme Court judges corporations to be immune to the law in question... then that decision would create a provision for the "abrogation by corporate status" which you are arguing currently doesn't exist. Your argument for why the law isn't needed is based on the fact that the desired effects of the law are already in effect— because of the law.

Just because you want a BLT doesn't mean that you can use your position as a corporate distributor to introduce and sell BLTs in Qatar and label them as Tofurkey Sandwiches... without the possibility of having your corporation held civilly liable for fraud... or civilly liable for the "damages" resulting from defiling a Muslim's sense of religious piety... or the damages if someone allergic to bacon dies because you are foisting false-Tofurkey upon an unsuspecting clientele.

Well, not until the Supreme Court decides that Corporations are as above the law as Presidents...

[The Doctor.]

14. So, let's all get incorporated.

I wonder how some of the first trials will look when "The Doctor, Inc." invokes the Supreme Court precedent in the civil trial over running LSD experiments on the population at large. (not that I would do that, but the corporation deserves to profit from the research)

One thing to point out; this isn't about immunity from criminal prosecution, just civil suits. Problem is that few people go to jail when corporations are prosecuted.

[Initech]

18. If they don't do the right thing, we need an amendment and impeachment immediately.

[truedelphi]

20. Can you clarify just who we should be impeaching?

Don't mean it snarkily - but I have a list of people, to impeach, and want to know if it needs additions.

[midnight]

22. I'm curious too. Justice Roberts?

[Initech]

25. Roberts, Alito, and Scalia.

[midnight]

29. Thank you. No explanation needed... Isn't that sad...

[rbnyc]

23. halfway through the article...

...I had to scroll up and make sure I wasn't reading The Onion. This is fucking ridiculous and has to stop.

[Pacifist Patriot]

36. I did the same thing!

[rbnyc]

37. I'm glad I'm not the only one.

It's mind-blowing.

[WinkyDink]

28. They will so uphold.

[WillyT]

30. HUGE K & R !!! - Thank You !!!

:mad:

:kick:

[Bennyboy]

32. wow. Kand r

[Tsiyu]

33. But, but!

"Corporations are PEOPLE!!!!"

This will get interesting. Perhaps it will be the case that sets America on edge, and we can get a new Supreme Court out of it.

If they allow immunity, actual, real people are going to be very rightly pissed.

[Ilsa]

34. K&R & watch. nt

[mistertrickster]

39. Corporations are people . . . people who can't be held accountable for their actions.

Okay, got it.

[Raster]

43. Corporations don't care if the air is filthy and causes disease....

...because they don't breath it.

Corporations don't care if the planet's water is poison, because they don't drink it.

Corporations don't care if thousands of children are sent to die in foreign hellholes, because they don't have children. To them they're just cost centers and utilization of available materials.

[myrna minx]

41. K&R n/t

[Quantess]

44. USA's downfall is accelerating.