Panelists on child labor describe accountability efforts

Schoolchildren play at a Goboué, Côte d'Ivoire, school
built by Nestlé and cocoa partners. Nestlé via Flickr CC BY 2.0.

Liability for child labor and child trafficking was the subject of an informative continuing legal education program from the International Law Section of the American Bar Association in January.

The program contemplated various legal vehicles for liability, including the alien tort statute (ATS) and the Trafficking Victim Protection Act (TrVPA). And don't count out ordinary, common law tort, said Terry Collingsworth, executive director of the International Rights Advocates. 

The program description set the alarming scene:

There is no childhood for boys and girls who are trafficked as sex slaves or for imperiled cobalt miners in the Democratic Republic of the Congo working without protective gear, or for children who are forced to fight as soldiers or girls conscripted into forced marriages. Nor is there a childhood for enslaved young boys as young as five who are sold to human traffickers and made to work as fishermen for up to 12 hours a day, seven days a week.

Despite a range of UN protocols and statutory accountability mechanisms, abusive child labor practices persist.

The reach of the 1789 ATS has been limited in recent years by Supreme Court rulings requiring that a matter "touch and concern" the United States. Collingsworth—whose commentary I found most informative, and a fellow Duke Law alum—criticized this interpretation of the ATS as reading non-extraterritoriality into the statute, "as if it should only apply if the kids were kidnapped from the United States."

The "read in" did contradict decades of federal court precedent, dating to the 1980s. At the same time, statutory interpretation recognizes a presumption against extraterritoriality, so the courts arguably strayed from first principles.

Even with the knowledge requirement, " sadly, there's enough of that to keep us busy for the rest of eternity," Collingsworth said.

Provided jurisdiction and venue can be managed in U.S. courts, ordinary, common law tort theories can be helpful: assault and battery, infliction of emotional distress, and unjust enrichment. The challenge there, Collingsworth explained, is that "it takes years." He said a pre-2001 case against Exxon is going to trial only now.

"It shouldn't be that hard to enforce internationally agreed norms prohibiting the abuse of children," he said.

Another angle of attack on the problem panelists said, is section 307 of the U.S. Tariff Act, which prohibits the import of goods "mined, produced, or manufactured wholly or in part in any foreign country by convict labor or[] forced labor or[] indentured labor." In a related vein, I myself have seen certifications on products, and I wouldn't mind seeing more.

At the international level, the problem with abundant human rights instruments is a lack of enforcement mechanism, panelists said. Without enforcement, agreements and treaties "only offer cover for companies," Collingsworth said. 

A virtual attendee asked about defensive claims that child labor is culturally normal or provides a worthwhile avenue of economic opportunity. Collingsworth said that child advocates hear those arguments "all the time: ... someone says it’s always been that way, that’s how they learn a skill or trade." The speaker, he said, "is usually a rich guy benefiting from the labor.

"If you ask the kids if they’d rather work or go to school, that’s an easy one."

The ABA International Law Section hosted the panel "Childhood Denied: A Lifetime Lost: Conventions and Cases" on January 25. International law and gender consultant Elizabeth Brand moderated. Other panelists, besides Collingsworth, were Shandra Woworuntu, chair of the International Survivors of Trafficking Advisory Board; Jo Becker, advocacy director for the children's rights division at Human Rights Watch; Will Lathrop, field office director of the Ghanaian International Justice Mission.

Court sentences 'Hotel Rwanda' activist to 25 years; U.S. plaintiffs serve Greek airline in civil action

Paul Rusesabagina

(NDLA: Creator: Erik Mårtensson/TT | Credit: TT Nyhetsbyrån CC BY-NC-SA 4.0)

Real-life "Hotel Rwanda" protagonist Paul Rusesabagina was sentenced in Kigali to 25 years' imprisonment on terrorism and related charges.

PRI The World's Marco Werman has an interview with journalist and author Michela Wrong about the latest in the case.  I wrote about the case in February.

Besides the concerning criminal proceeding in Kigali, the luring in 2020 of Rusesabagina, a Belgian citizen and U.S. resident, from his San Antonio, Texas, home to his abduction on a Dubai flight purportedly bound for Burundi spawned a lawsuit in the United States.  Claiming under the alien tort statute (ATS) and Torture Victim Protection Act (TVPA), Rusesabagina's family sued GainJet, the Athens-based airline that conveyed Rusesabagina in his abduction to Kigali, and Constantin Niyomwungere, who the complaint alleges was a Rwandan agent pretending to be a pastor conveying Rusesabagina to speak in Burundi.

Upon news of the criminal conviction, I thought it time to check the docket in Rusesabagina v. GainJet Aviation S.A. (Court Listener; see also family statement on conviction and more at Rusesabagina Foundation).  Regrettably, there is little of substance to report.  As one might expect, the plaintiffs have struggled with service of process.

The complaint was filed in the Western District of Texas in December 2020.  In May, plaintiffs reported to the court their intention to drop Niyomwungere from the lawsuit.  Plaintiffs wrote that Niyomungere "gave statements to the Rwanda Investigation Bureau in February and August of 2020 admitting that he had helped to kidnap Mr. Rusesabagina."  However, plaintiffs wrote, Niyomwungere is believed to reside in Burundi, and Burundi is not a signatory to the Hague Service Convention.

Meanwhile, plaintiffs had had service on alleged "co-conspirator" GainJet translated into Greek and delivered to Greek authorities under the Hague convention.  In the latest docket entries, in late August, GainJet returned a waiver of service of summons without waiving any defense of jurisdiction or venue.

Plaintiffs re-alleged in the May report that GainJet told Rusesabagina he was aboard a flight to Burundi.  Then "Gainjet’s pilot and flight crew stood idly by and watched as Mr. Rusesabagina was tied up by the hands and legs, his eyes covered, and his mouth gagged," plaintiffs further alleged, and GainJet accepted payment from the Rwandan government.

A private charter service, GainJet does fly to the United States.  In 2019, the U.S. Soccer Women's National Team flew home from the World Cup in France on a GainJet 757 to New York.  But I've not been able to identify any GainJet office or assets in the United States.  That bodes ill for having a federal district court in Texas exercise jurisdiction.

At the same time, GainJet holds itself out worldwide, and in English, as a luxury charter service.  Ongoing association with the Rusesabagina case can't be good for business amid the jet set.

A defense response in the case is due in late October.

Child labor still plagues chocolate supply chain in West Africa, despite decade of distressing documentaries

From our dining room table, a chocolate bunny left over from the weekend is staring me down.  Two things are keeping me from biting off its smug head.  First, I just got back from a run of only a couple miles, and I feel like I'm breathing through a straw.

Second, earlier today, I watched Chocolate's Heart of Darkness, a study of child labor in the chocolate supply chain.  The 42-minute piece is free on YouTube, posted September 2020.

This English version is credited to German public broadcaster Deutsche Welle (DW), though the film originated with French independent documentary firm Premieres Lignes in 2019.  French journalist and filmmaker Paul Moreira directed.  On YouTube, Chocolate's Heart of Darkness appears as "Bitter Chocolate," which risks confusion, because that is the title of an equally disturbing but different project on the same subject: s2e05 of the Netflix documentary series, Rotten, directed by Abigail Harper and also released in 2019.

Both of these Bitter works update, with precious little progress to report, the sorry state of affairs captured in the 2010 documentary The Dark Side of Chocolate, which was co-directed by Danish journalist Miki Mistrati and American U. Roberto Romano, a photojournalist and human rights activist who passed away in 2013.

Cocoa I photographed in Ghana in 2020.
The DW film depicts industry reliance with some success
in certification tracking in Ghana, but not in Côte d'Ivoire.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

In the last decade, I've refrained from recommending the 2010 docko to students or colleagues, because it's one of those films in which the makers' agenda so powerfully muscles in on the narrative that the viewer is left with reservations over objectivity.  But now, with two more projects in the same vein and all compasses pointing in the same direction, I think it's fair to discount nuanced indications of bias and say that Big Chocolate has a real mess on its hands.

Litigation against American agri-giant Cargill, a key broker in the global chocolate trade, and against Swiss-based multinational Nestlé, over child labor—practically, slavery—sits presently in the U.S. Supreme Court (Cargill, Nestlé at SCOTUSblog).  A decision, due any day, seems likely to kick the claims out for lack of U.S. jurisdiction under the alien tort statute, however much some Justices might have been troubled by what they heard in oral argument in December.

Even if the suits were to proceed in U.S. courts, or in any courts, Chocolate's Heart of Darkness gives a flavor of how hard the claims would be to prosecute.  Abusive child labor is so entrenched in West African forests, and nations such as Côte d'Ivoire so utterly incapable of establishing rule of law in these remote places, that it is scarcely imaginable that cocoa could be harvested any other way.  This is to say nothing of rampant deforestation to meet demand.

The film shows that the certification and tracking mechanisms set up with, let's give the benefit of the doubt, the best of intentions by the corporations to make good on sustainability pledges are so riddled with corruption as to be farcical.  It strains credulity to suppose that transnational companies do not know the reality.  But knowledge is not necessarily culpability.  And this is hardly the only supply chain that leads from Western fancy to catastrophic human toll in the developing world.

I don't think that my chocolate bunny is going to last the week.  But it's going to make me sick in more ways than one.

Big Oil deploys slick strategy to stay ahead of liability

Image by Ucheke CC BY-SA 4.0

On February 12, the UK Supreme Court allowed a claim of environmental catastrophe by 40,000 to 50,000 Nigerian farmers to proceed in English courts against defendant Royal Dutch Shell.  The ruling came just two weeks after farmers prevailed in a significant but more limited case against Shell's Nigerian subsidiary in a Dutch appellate court in The Hague, after 13 years of litigation, and eerily echoes the still unfolding saga of the Chevron-Ecuador battle over Lago Agrio in the Amazon.

I'm compelled to mention the UK case, though it has been covered exhaustively in the media (e.g., N.Y. Times), because I wrote just last week on the controversial scope of "alien tort" liability in U.S. courts.  The case against Royal Dutch Shell ("Shell"), for devastating oil pollution in the Rivers State of the Niger Delta, is a kind of alien tort case in UK and Dutch courts.  In the UK, no specific statutory authorization is required to sue Shell, which is incorporated in the UK and headquartered in The Hague.  Rather, jurisdiction may be invoked upon the plaintiffs' demonstration of a duty in common law tort owed by the defendant company.

UK Supreme Court
(photo by M. Zhu CC BY-NC-ND 2.0)

The UK ruling is preliminary only; the court held that the plaintiffs demonstrated a "real issue to be tried," the preliminary standard, over the role of Shell in the pollution. The nub of the problem for the plaintiffs is that operations in Nigeria were run by, and not exclusively owned by, a subsidiary corporation of Shell, the foreign-registered Shell Petroleum Development Company of Nigeria Ltd. (SPDC).

The corporate shell is designed specifically to insulate the parent company against liability for the conduct of the subsidiary.  To penetrate the shell and reach the parent, the plaintiffs must show that Shell, the parent company, directed the conduct of SPDC, the Nigerian subsidiary, or worked jointly with SPDC.  The court in The Hague allowed jurisdiction upon a comparable control theory in 2015, though ultimately entered a monetary judgment only against SPDC.

The preliminary ruling from the UK Supreme Court does not yet establish direction or joint control, but says that the plaintiffs have made a sufficient showing to serve their lawsuit on Shell.  Rather than digging into the facts, the Supreme Court faulted the courts below, both the majority that had rejected the plaintiffs' claim and the dissent, for looking too closely at the plaintiffs' evidence and effecting a sort of "mini-trial" on the question of Shell control before the case has even been pleaded properly.

Nchanga Copper Mine, Zambia, 2008
(photo by BlueSalo CC BY-SA 3.0)

Environmental damage and human toll in the developing world as a result of resource extraction by western corporations is, sadly, not a new problem, and the UK Supreme Court invoked its experience in a prior case.  In 2015, plaintiffs in Zambia won the right to sue UK-based Vedanta Resources upon allegations that copper smelting had poisoned the water supply with "rivers of acid," containing sulfuric acid and other dangerous toxins.  The cooper operation in Zambia was owned by a Vedanta subsidiary, Konkola Copper Mines.  After the Supreme Court allowed suit in England, Vedanta settled with more than 2,500 Zambian claimants.

Vedanta was decided in the spring of 2019, and only then, after the lower courts had rejected the claims against Shell, did the Supreme Court admonish judicial restraint on questions of fact in preliminary proceedings and set out an approach to analyze parent-company duty: "depend[ing] on the extent to which, and the way in which, the parent availed itself of the opportunity to take over, intervene in, control, supervise or advise the management of the relevant operations (including land use) of the subsidiary."

Niger Delta, Nigeria
(ESA photo CC BY-SA 3.0)

In pleadings and on appeal, the plaintiffs asserted a dozen bases in fact to demonstrate Shell control of SPDC, including mandatory compliance standards for subsidiaries on health, security, safety, and environment; business principles; and best practices for assets, facilities, and infrastructure.  According to the plaintiffs, "[Shell's] executive remuneration scheme depended to a significant degree on the sustainable development performance of SPDC."  The plaintiffs alleged that Shell "for many years had detailed knowledge about widespread pollution in the Niger Delta caused by spillages and leakages of oil from infrastructure operated by SPDC, including knowledge of the frequency, location and size of oil spills, including its failure to protect its oil infrastructure against the risk of damage caused by the criminal acts of third parties."

According to the New York Times report on the case, Shell is retreating from investments in the Niger Delta and other sites near human habitation, preferring to drill offshore.  Meanwhile, disputes endure over responsibility to clean up the pollution left behind by extraction and over the efficacy of cleanup efforts.  In this way, the Nigeria case is strikingly similar to others in the world, notably, the long-running dispute between rain-forest communities in Ecuador and oil giant Chevron, successor to Texaco.

In the case against Chevron, an Ecuadorean court in 2011 ordered Chevron to pay $9.5bn to residents of Lago Agrio, a community in the Amazon, for catastrophic oil pollution there.  In 2014, a U.S. federal court ruled that the judgment was procured through fraud, and the plaintiffs' champion U.S. attorney, Steven Donziger, was disbarred in 2020.  The plaintiffs' efforts to collect on the award in courts with jurisdiction over Chevron assets in other countries, such as Canada and Argentina, have failed so far.  Donziger is appealing his disbarment while also facing contempt prosecution in New York.  Celebrity environmentalists continue to hail him as a hero, railroaded by Big Oil.  Meanwhile a district court in The Hague has demanded (subscription), pursuant to arbitration, that Ecuador nullify the judgment, and the matter continues to haunt Ecuador's destabilizing presidential elections.

For the third time, I'm having my comparative law class read Paul M. Barrett's Law of the Jungle, which chronicles the Chevron-Ecuador matter until the book's 2015 publication.  For my money, Barrett's is the most even-handed account out there.  (See also coverage by Michael I. Krauss for Forbes.)  And it's not flattering of Donziger.  But it's also not flattering of Texaco.

The complicated truth of what happened at Lago Agrio is a tragedy in multiple dimensions, generating plenty of blame to go around.  Donziger might have played fast and loose with the law in Ecuador, after being rebuffed in the United States, but he was navigating the outstretched hands of a sorely corrupt judiciary.  The devastation at Lago Agrio is real, and no one, oil firms or government, has ameliorated it.  At the same time, much, if not most, of the pollution can be traced directly to the national oil company of the Ecuadorean government, which at various relevant times bore exclusive or joint responsibility for Lago Agrio.  Even insofar as Texaco controlled the site, government regulators, also riddled with corruption, were utterly derelict in their duty to protect fundamental human rights and enforce industry norms.  To date, the people of Lago Agrio, maybe the only innocent actors in the whole story, have been left to struggle with the horrific health consequences and daily challenges of water and land contaminated by lethal toxins.

In Nigeria, Shell and SPDC also lay blame on the Nigerian government, a partner of SPDC in the extraction operation through the state-owned Nigerian National Petroleum Company.  I have no doubt that the government bears responsibility both for what it did as an owner and what it did not do as a regulator.  I wager that Shell and SPDC, like Texaco and Chevron, are guilty of conscienceless exploitation, but also behaved as rational corporate actors, splitting the difference between the costs of malfeasance and the benefits of non-regulation.  Like in Lago Agrio, the people of the Niger delta are left to endure the consequences of symbiotic opportunism, while the perpetrators point their fingers at each other.

Shell corporate building in The Hague
(photo by Mr. Documents Uploader CC BY-SA 4.0)

Maybe the concept of "alien tort" in the UK is turning the tide at last.  One might expect Shell to follow Vedanta's example and settle, for public relations reasons, if nothing else.  Reuters reported that Shell settled another Niger Delta pollution claim in British courts in 2015 for €70m.  Shell has consistently pledged to clean up Niger Delta pollution, even while disavowing responsibility.  But Shell did not settle the case in the Netherlands, where the company has been able to postpone liability for 13 years to date.  The AP reported that two of four farmer-plaintiffs died since the case there was filed in 2008.  An appeal to the Dutch Supreme Court may yet be filed, and Big Oil might be emboldened by Chevron's experience.

Rivers State, Nigeria
(image by Jaimz height-field CC BY-SA 3.0)

If Shell digs in its heels in the UK, the plaintiffs have an uphill battle ahead.  They will have to produce clearer evidence to persuade the trial court that Shell exercised control at the local level, and then to link Shell oversight to the pollution in proximate causation.  Shell, fairly, will seek to muddle the chain of causation with the intervening actions of venture partners, private and public, and the third-party actions of criminals who sabotaged and burglarized the oil pipeline.  The Dutch appellate court mitigated the plaintiff-farmers' win there by nullifying defense liability in part for the actions of saboteurs, even while recognizing with regard to one claim that SPDC made nefarious access to the pipeline too easy.

If ever there is a settlement or award for plaintiffs that turns ripe for enforcement, it will remain to be determined how effectively money can be converted into remediation in a legal regime whose wavering commitment to the rule of law has been complicit in damage to the Niger Delta environment for the six-decade duration of the nation's independence.  To the plaintiffs' favor, for now, in the UK, their case is informed by their experience in The Hague, where the trial court afforded plaintiffs latitude to probe Shell files for evidence of corporate control.

The case in the UK Supreme Court is Okpabi v. Royal Dutch Shell Plc, [2021] UKSC 3 (Feb. 12, 2021).  Lord Nicholas Hamblen delivered the opinion, with which Lord Hodge, Lady Black, and Lord Briggs agreed.

Alien tort animates U.S. lawsuit in abduction of 'Hotel Rwanda' hero, threatens immunity of social media

Paul Rusesabagina at the University of Michigan in 2014

(photo by Ford School of Public Policy CC BY-ND 2.0)

The alien tort statute has turned up more than usual lately in my newsfeed.  In two compelling appearances, the law is implicated in the criminal prosecution now underway in Kigali of "'Hotel Rwanda' hero" Paul Resesabagina, and it has a cameo in the section-230-reform show now playing on Capitol Hill.

Last week, Professor Haim Abraham, of the University of Essex School of Law, spoke to the Obligations Discussion Group, organized by the University of Oxford Faculty of Law, on his current working paper, "Holding Foreign States Liable in Tort."  Working at the intersection of torts and human rights, Professor Abraham is passionate about the problem of accountability for wrongs perpetrated by state actors.  His present work means to outline a policy framework to support state liability, and he made a reference in passing to the American alien tort statute (ATS).

Dating to 1789, the ATS, complemented by the Torture Victims Protection Act of 1991 (TVPA), is a principal legal avenue to liability for torts committed abroad.  ATS liability, though, runs up against serious hurdles, namely, the law's own vague scope, and foreign sovereign immunity.  On its own terms, the ATS only pertains when a wrong rises to a violation of international law or treaty, often imprecise benchmarks.

The enigmatic 18th-century enactment says little else.  Especially in recent decades, the U.S. Supreme Court has grown fastidious in its interpretation of the law, rejecting claims without sufficient nexus to the United States.  Meanwhile, ATS plaintiffs must take care to pursue wrongdoers as rogues, lest defendants present as state actors entitled to foreign sovereign immunity.  The TVPA was a mitigation of that latter limitation.

Sharing Professor Abraham's appetite for accountability, not to mention my self-interest in full employment for torts professors, my attention is captured anytime the ATS turns up in a way that might yield fresh fruits.  And so it has.

Graves of genocide victims in Rwanda in 1995
(photo by Gil Serpereau CC BY-NC-ND 2.0)

The New York Times, among others, has reported on the shady chain of events that led to the presently ongoing criminal trial in Kigali of Paul Resesabagina, the man who saved some 1,200 lives during the Rwandan genocide in 1994 and whose story was turned into a major motion picture starring Don Cheadle.  Living outside Rwanda first in Belgium and then in the United States, Resesabagina has been an outspoken critic of Rwandan authorities, both as to the genocide and as to subsequent Rwandan foreign policy, including alleged involvement in war crimes in the Democratic Republic of Congo.  He knew better than to return to Rwanda, but, reports state, Resesabagina thought he was on a plane to Burundi for a speaking engagement when the plane landed in Kigali, and he was placed under arrest on terrorism charges.

There's plenty to debate about the criminal matter in Rwanda, but my focus here is on events back home.  Rusesabagina's family in San Antonio, Texas, in December 2020, sued GainJet and Constantin Niyomwungere in federal district court under the ATS and TVPA, and in Texas tort law on counts of fraud, false imprisonment, intentional infliction of emotional distress, and civil conspiracy.  GainJet is the company that conveyed Rusesabagina from his Dubai layover to Kigali, and the family alleges that Niyomwungere, a purported pastor who invited Rusesabagina to to speak in Burundi, was in fact a secret operative of the Rwandan government.

The pleadings mean to represent the abduction as a violation of international law, besides common law torts, and to bring the case within the scope of the TVPA, too.  The complaint characterizes the abduction of Rusesabagina as "extraordinary rendition" and charges the defendants with torture of Rusesabagina upon or after his landing in Kigali, stating that he was kept bound, blindfolded, and gagged for days and "physically and psychologically tortured" in interrogation.

GainJet B757 ascending from Coventry, England, in 2015

(photo by Rob Hodgkins CC BY-SA 2.0)

Niyomwungere is characterized alternatively as a state actor or a free agent working with the state, to deal with immunity on that front.  Either he was a state actor, in which case the state would have to concede its role in the abduction, or he was a rogue, subject to tort liability (if he can be brought within U.S. jurisdiction).  The complaint furthermore alleges that GainJet, a private charter company based in Athens, Greece, was a knowing co-conspirator with the Rwandan government, so the GainJet pilot and co-pilot, knowing what was afoot, failed to signal an emergency in the air.  The complaint catalogs GainJet commercial outreach to Rwanda and speculates that the firm was anxious for work amid the Greek economic debacle.

The complaint asserts that the matter in sum sufficiently "touches and concerns the United States" to satisfy Supreme Court requirements, because the defendant-conspirators reached out to Rusesabagina at his Texas residence to lure him abroad.  That by itself is a thin reed, but the U.S. residency of the plaintiffs bolsters the nexus.

Meanwhile, in Washington, D.C., Senate Democrats are circulating a proposed bill that would carve out some slices of Internet service providers' infamous tort immunity under section 230 of the Communications Decency Act of 1996.  Section 230 reform has become a bipartisan cause since both Democrats and Republicans, often for different reasons, have sought to blame social media companies for our present national discontent, whether for not censoring enough or for censoring too much.

The proposal does not represent a wholesale repeal and reinstatement of conventional publisher liability in tort, as some congresspersons called for.  Among proposed new immunity exceptions are actions in civil rights law, antitrust law, "stalking, harassment, or intimidation laws," wrongful death, and, lo and behold, "international human rights law," specifically, the ATS.

The theory behind the proposal as to the ATS is that social media companies over which the United States has jurisdiction could be held liable for having facilitated human rights violations abroad.  As Lauren Feiner observed for CNBC, this measure

could be particularly risky for Facebook, which acknowledged in 2018 that it was “too slow to prevent misinformation and hate” on the platform as Myanmar military officials sought to weaponize it in what became characterized as a genocide against the minority Rohingya Muslims. The SAFE TECH Act would clarify that Section 230 immunity should not bar suits under the [ATS], which could allow survivors of the genocide in Myanmar to bring cases against the platform in the U.S.

People displaced by violence in Myanmar in 2012
(photo by UK Department for International Development CC BY-SA 2.0)

Myanmar would be only a starting point, as social media, including Facebook's WhatsApp, have been blamed for eruptions of violence around the world, notably including mob violence in India (which I talked about at a Dubai event in 2019 sponsored by India-based Amity University).  Plaintiffs would face the usual high hurdles of the ATS, including the international law requirement and the requisite U.S. nexus, as well as hurdles in conventional tort law, such as duty and proximate causation.  But it's not hard to imagine plaintiffs surviving dismissal to see discovery.  Even without further process, discovery would be a boon to human rights advocates.

Over its centuries of life on the books, the alien tort statute has been counted out as a dead relic, resurrected as a reputed redeemer, and wrangled as a menacing mischief-maker.  What seems certain now, whether under the ATS, TVPA, or instruments yet to be devised, is that in our smaller world, the challenges of legal accountability for both states and corporations for transnational misconduct cannot be written off easily as beyond the scope of national concern or domestic jurisdiction.

The case in Texas is Rusesabagina v. GainJet Aviation, S.A., No. 5:20-cv-01422 (W.D. Tex. filed Dec. 14, 2020).  At the time of this writing, PACER shows no activity since filing.

The section 230 reform bill was introduced in the Senate, 117th Congress (2021-2022), on February 8, 2021, as S.299.

Tort litigation as means to truth about the Troubles, authors propose; approach parallels access theory

A new article from researchers in Newcastle, England, posits the use of tort litigation to exonerate the right to truth in relation to the Troubles in Northern Ireland.

The authors are Conall Mallory, University of Northumbria at Newcastle,  Sean Molloy, Newcastle University, and Colin Murray, Newcastle University Law School.  Their article is Tort, Truth Recovery and the Northern Ireland Conflict, forthcoming 2020 in the European Human Rights Law Review and available on SSRN.  (Hat tip @ Steve Hedley, Private Law Theory.)  Here is an excerpt of the abstract.

Northern Ireland has no effective process to address [the] legacy of the human tragedy of decades of conflict. And yet during that conflict, and especially in the years since the Belfast/Good Friday Agreement 1998, people have employed multiple legal mechanisms to gain information about events which affected them and their loved ones.... One under-explored element of this complex picture is use of tort in legacy cases. Civil actions, supported by legal aid funding in Northern Ireland, provide a potential avenue for the discovery of information held by public bodies. Even unsuccessful actions can thus contribute new information about the events in question. Many of the harms inflicted during the conflict were torts as well as crimes, and this article assesses the extent to which these civil actions provide an ersatz mechanism for truth recovery, and challenges efforts to curtail such actions as a "witch-hunt."

Derry clash, Apr. 1971 (N. Ire. public record)

The right to truth is a piece in the puzzle of truth-and-reconciliation strategies as they have been implemented with variable success in post-conflict venues around the world.  The strategies are predicated on the notion that the revelation of truth has value in of itself to victims and survivors.  The conventional legal system, focused as it tends to be on compensation, often accomplishes nothing when compensation fails to materialize, or even nothing in the way of meaningful remedy if compensation does happen.  Thus truth proceedings are regarded as a hallmark legal innovation to clear the decks and allow peoples and nations to move forward.  So well regarded is this principle that human rights instruments and institutions have come to recognize "the right to truth" as a human right, a necessary corollary to the right to life.

In this article, the authors lament that there has been no effective, systematic truth process following the Troubles.  To the contrary, they posit, the U.K. government has as often thrown up roadblocks to truthful revelation.  A patchwork of legal mechanisms has nonetheless allowed truth to surface, they explain, and they review the efficacy of legal actions such as human rights litigation and information requests under the U.K. Freedom of Information Act.

Tort litigation offers another, as yet underutilized avenue, they propose.  For reference, they point to the Alien Tort Statute in U.S. jurisprudence, though, I add, it has lately fallen on hard times in the U.S. Supreme Court; and they point to U.K. agreements in recent years to pay claimants in Kenya and Cyprus in compensation for violent colonial suppression in the 1950s.  Survivors of the Troubles, even those who were children at the time, may press tort claims, such as battery, trespass, and civil conspiracy, against violent actors in the Troubles, whether British security officials, IRA fighters, or other paramilitarists.

British Army patrol in Kenya during 1950s Mau Mau Uprising
(Imperial War Museums)

Tort litigation in the proposed vein is not a new idea, but stumbles amid many hurdles, not the least of which is sovereign immunity.  But immunity can be overcome in actions against persons, whether non-governmental or gone rogue.  And there is ample evidence of both in the history of the Troubles.  An IRA defendant, for example, may be a purely private actor, and a British official who inflicted violence might be sufficiently dissociated from government policy as to negate immunity.  There's a fine line anyway between tort litigation and human rights claims, see Stefan Somers's whole book on the subject, the two more or less coinciding in the United States in the area of "constitutional tort."

Anyway, the authors claims, the plaintiffs in these tort actions do not actually have to win; they just have to survive dismissal to get to discovery.  Because their aim, remember, is truth, not compensation.  So the authors are really proposing that tort litigation be used for its discovery methods, regardless of the outcome of the case.  They moreover suggest that the litigation might shake loose answers from the government to avoid the prospect of compensation, or at least the cost of litigating, and they illustrate that having happened already in select cases.

The idea of using tort litigation for its discovery mechanism rather than with the aim of compensation is dicey, but not wholly objectionable.  Ethically a lawyer should not file an action that isn't winnable upon some rational theory.  But these cases wouldn't fail that test; there's no rule against having a multitude of aims in the fight, even if you think you'll lose on decision.  Of course, American tort lawyers are often criticized (whether it's true or not, discussion for another day) for playing fast and loose with that understanding, using the litigation process and its hefty transaction costs to shake down defendants on barely credible claims.  Here at least the aim is truth, rather than a pay day, so an aim with some sanction in civil rights.

The proposed litigation strategy reminds me of the work I've been doing lately (e.g., U.S. reform proposal) on the freedom of information, or right to access to information, in South African law.  There, a provision of law allows access to private sector records upon stringent prerequisites, namely, the exoneration of human rights.  The right to truth is one right that should fit that bill, a co-author and I have posited (abstract on SSRN, blog).  In a conventional South African FOI case, the courts allowed access to the records of a public steel company to investigate the exploitation of Apartheid labor.  It's a short leap from there to investigation of a private company with similarly sinister secrets.

Moreover, the South African courts have put some mileage on the private-sector-access law as a tool for "pre-discovery," before tort litigation is filed, to help a would-be plaintiff test the evidentiary waters.  That approach can only make litigation more efficient, more than one South African court has reasoned, by filtering out non-viable causes.

Those twin rationales, the right to truth and the validity of pre-discovery, seem incidentally to countenance the repurposing of tort law to the aim that Mallory, Molloy, and Murray here propose.  A comprehensive and government-sponsored approach to truth-finding would be more satisfying to those of us who like to call something what it is.  But maybe this is a way that tort law can exert policy pressure to bring about, in time, a coherent legal approach to the right to truth.

Report from a Social Distance: Week 3

Tort Anomalies, Other Worlds, and Fox Tales

Ready for shopping

My quarantine since returning to the United States ended last weekend, and we made a bold trip to the grocery store to refuel.  Whole Foods effectively stopped delivery here since the strike, and our nearest locally owned delivering grocer is on the opposite side of Narragansett Bay.  So we suited up with gloves and, as Rhode Island Governor Raimondo instructed, bandana masks to leave the house.  Otherwise, life isn't much different in or out of official self-quarantine.

What I'm Reading

My sabbatical plans prematurely aborted, this week involved catching up on some professional reading.  For those into legal arcana, here are the most interesting reads that crossed my virtual desk.  Other readers, feel welcome to scroll down to TV.  I'm also continuing with my church's Bible reading, which has us into the David saga of 2 Samuel, with excellent accompanying video as usual by the BibleProject.  For those who celebrate, respectively, happy Passover, and happy Easter!

Steve Hedley, Tort: The Long Good-Bye (Apr. 8, 2020).  Posted to SSRN, this paper is a fascinating survey of tort law through history, culminating in and replete with contemporary observations ripe for the unpacking.  Prof. Steve Hedley, University College Cork School of Law and Private Law Theory, sees tort law as on its way out, but not without leaving tort lawyers and scholars with plenty of work to do in the process.  As his abstract explains, "Discouraging harmful behaviour is a fundamentally different project from supporting the sick and penniless.... [W]e cannot finally say farewell to tort until all of its vital functions are replaced with better provision, which requires both political will and a fair degree of optimism – both currently rare commodities."  Consider this observation: "From the 1980s onwards in the US, ‘tort reform’ began to be code for restricting tort without replacing it with any other system – in other words, putting tort’s hitherto steady expansion into reverse."  As someone committed to tort's social value and also someone who suffers anxiety over corporatocracy, I found compelling Hedley's broader thesis that the tort system has been honed over centuries to work its aims on people, and the system is dysfunctional vis-à-vis corporations, which today account for the vast majority of tort defendants.

James Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation, 94 Ind. L.J. 957 (2019).  Causation has been a central obsession of philosophers for millennia, and it's something lawyers worry a lot about too.  I am liable for battery if I punch a compatriot at the bar.  But that conclusion assumes that the plaintiff-victim is complaining of injury that sits along a causal flow downstream from my ill intention.  What if the plaintiff suffered from a pre-existing injury, and I complicated it?  What if, subsequent to our encounter, the plaintiff's injuries were worsened by medical malpractice?  Things get more complicated when physical injury is removed from the problem.  When is an employer's discriminatory intent a legal cause of wrongful termination if the employee would have been fired anyway for misfeasance?  In tort law, contemporary American courts struggle to approximate the "ordinary" meaning and understanding of causation.  See, e.g., Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, No. 18-1171 (U.S. Mar. 23, 2020) (SCOTUSblog).  In an ambitious project of empirical survey research, Prof. James Macleod, Brooklyn Law School, has demonstrated that despite this effort, our understanding in tort law may have diverged from ordinary understanding in important respects.

Daniel J. Solove, The Myth of the Privacy Paradox (last rev. Mar. 13, 2020).  Years ago, when privacy law was barely a thing, those of us working in freedom-of-information-advocacy circles counter-argued to personal-privacy proponents that the public's desire for privacy was belied by how readily a person would surrender name, address, and telephone number for an extremely unlikely "chance to win" ripped from a cereal-box top.  The Reporters Committee for Freedom of the Press named an influential publication after this "privacy paradox" in 1998, and my friend and colleague Charles N. Davis, now dean of journalism at Georgia, ushered the concept into the digital age.  More recently, see WNYC Note to Self's "Privacy Paradox" project (logo pictured).  Now privacy law guru Prof. Daniel Solove, George Washington Law, has turned his attention to the problem.  In a new paper, posted to SSRN in February and forthcoming in the GW Law Review, 2021, Solove explains that the paradox emerges from an error in level of abstraction.  A person's disregard for privacy in the narrow and specific context of filling out a raffle entry cannot be equated to a person's rational and more holistic notion of personal integrity.

Alien tort: Nevsun Resources Ltd. v. Araya, 2020 S.C.C. 5, [Feb. 28, 2020] (Canada).  Amid recent decades of globalization, comparatists and internationalists in U.S. tort law have been rapt with waxing and waning trends in the extraterritorial application of American law, especially under the enigmatic Alien Tort Statute (e.g., Radiolab).  The same trends are evident around the world, as national courts struggle to demarcate limits to their own power, balancing classical principles of comity and judicial restraint against burgeoning challenges to human rights coming from both public and private sectors.  In a 5-4 decision in February, the Canada Supreme Court dismissed a claim under customary international law upon compelling allegations: "Three Eritrean workers claim that they were indefinitely conscripted through Eritrea’s military service into a forced labour regime where they were required to work at a mine in Eritrea. They claim they were subjected to violent, cruel, inhuman and degrading treatment. The mine is owned by a Canadian company, Nevsun Resources Ltd."  The court dismissed under "act of state doctrine," an extra-constitutional principle of judicial restraint comparable in function (see, e.g., Achebe, Cooper, Hill), to foreign sovereign immunity.  HT @ Prof. Simon Baughen, Swansea University, Wales.

Climate change: Smith v. Fronterra Co-op. Grp. Ltd., [Mar. 6, 2020] N.Z.H.C. 419 (New Zealand).  In a legal era of legislative abdication, interest groups have resorted to courts around the world to combat climate change.  A victory upon an unusual statutory basis in a Dutch appellate court in 2018 (The Savory Tort, Oct. 12, 2018), upheld by the Dutch Supreme Court in 2019, lent perhaps undue optimism to the global movement, which is ongoing.  Courts in many nations have fairly determined that the judiciary is ill suited to tackle the profound policy crisis of climate change.  Accordingly, in January, the U.S. Ninth Circuit dismissed a youth class action in Oregon that had gained some traction after an indulgent district court ruling (The Savory Tort, Oct. 12, 2018).  Juliana v. United States, No. 18-36082 (9th Cir. Jan. 17, 2020).  Unremarkably, then, the New Zealand High Court decided likewise, in part, in a climate case in Auckland in March.  A plaintiff coastal land owner sued greenhouse-gas-emitting energy and dairy interests on three tort theories, "public nuisance, negligence, and breach of an inchoate duty."  The court dismissed the first two counts for reasons of, respectively, failure of injury different in kind and degree as between plaintiff and public, and failure of foreseeability.  What's interesting is what the court wrote briefly about the plaintiff's surviving "inchoate" theory:

I am reluctant to conclude that the recognition of a new tortious duty which makes corporates responsible to the public for their emissions, is untenable. As noted by [three justices on the N.Z. Supreme Court in a paper at a 2019 climate change conference in Singapore] it may be that a novel claim such as that filed by Mr Smith could result in the further evolution of the law of tort. It may, for example, be that the special damage rule in public nuisance could be modified; it may be that climate change science will lead to an increased ability to model the possible effects of emissions. These are issues which can only properly be explored at trial. I am not prepared to strike out the third cause of action and foreclose on the possibility of the law of tort recognising a new duty which might assist [plaintiff] Mr Smith.

HT @ Prof. Barry Allan, University of Otago, Dunedin, N.Z., who predicts, via the Obligations Discussion Group, "that the defendants will appeal the decision that the inchoate tort is tenable, although they may act strategically and demand that this first be properly pleaded."

What I'm Watching

Goliath s3 (Amazon trailer) was so much better than s2.  Season 2 kind of sold out on the concept of Billy McBride as a civil lawyer and got drawn nearly into the realm of trite criminal procedural.  Plenty of crimes definitely happen in s3, but the legal drama centers on a class action lawsuit to save a small California town that's had its water supply stolen by a ruthless family of almond farmers.  Billy McBride (Billy Bob Thornton) and partner Patty Solis-Papagianis (Nina Arianda) are in top form, and legal TV trivium: Patty's biological mother is played by Monica Potter, who was Crane, Pool & Schmidt associate Lori Colson in Boston Legal s1 (2004-05).

Ragnarok s1 (Netflix trailer).  This six-episode Norwegian supernatural mystery is thoroughly entertaining, with top-flight dubbing into English.  It's proved a smashing success as a Netflix original—Netflix has 750,000 subscribers in Norway and 4m in Scandinavia, according to What's On Netflix—produced by Copenhagen-based SAM, and already has been green-lighted for a second season.  The show takes place in the fictional Norwegian town of Edda, which is the real southwestern, fjord-side town of Odda, where a ruthless family of manufacturing magnates have poisoned the local water supply and accelerated the melting of the glaciers (recurrent theme). Our hero, Magne (David Stakston), is a Billy Batson-like teen who gradually realizes that he's a kind of incarnation of the Norse god Thor, destined to battle evil to save his town and the environment. The story plays loosely with Norse myth, giving Magne a trickster brother, Laurits, played with Loki-worthy aplomb by Jonas Strand Gravli.

The New Pope (HBO).  Academy Award-winner John Malkovich proves his iconic status yet again in this brilliant portrayal of a weirdly enigmatic and intellectual Pope John Paul III, who ascends to the papacy upon the unusual circumstance of a comatose predecessor.  This is really a second season, a worthy sequel series to The Young Pope, in which Jude Law starred as a megalomaniacal yet magnetic and possibly truly divine Pope Pius XIII.  Negligible spoiler, mostly tease: Pius does come out of his coma, and the two great actors take the screen together before the season ends.

Altered Carbon s2 (Netflix trailer).  Dystopian science fiction at its small-screen best, this Emmy-nominated winner is back to tell more of the story of "the last Envoy" soldier Takeshi Kovacs, based on the cyberpunk novels of Richard K. Morgan.  Thanks to the plot device of human immortality through changing bodies ("resleeving"), New Orleans-born Anthony Mackie, the Avengers' Falcon, is able to take over, from s1's Joel Kinnaman, House of Cards' Will Conway, the lead role of Kovacs in s2, and muscular Mackie shines, or broods, as the case may be.  Ironically, the delightful yet ephemerally holographic character of Poe is carried over from s1 in the capable craft of Chris Conner.  Netflix also has premiered a 74-minute animated feature film in the Altered Carbon universe, Resleeved; Conner has a voice role.

Curb Your Enthusiasm s10 (HBO).  Comedy break.  Every episode is instant-classic LD. The familiar cast returns, including Jeff Garlin, who never misses an improvised punchline.


A new category this week, "I Watched, But Can't Recommend":

First, a lot of folks are talking about Kingdom, a two-season-and-counting Korean Netflix horror to sate your unhealthy bloodthirst for zombies when you've run out of Walking Dead and Z Nation.  I got through half of s1, and it couldn't hold my interest.  The zombies are secondary to a drama about entitlement to the royal throne; I had trouble following the story or caring.  If you need a zombie fix, I suggest Daybreak s1 on Netflix, though it will not get a second season.

Second, I caught up on Riverdale s4 over at CW TV, coming soon to Netflix.  It was a decent backdrop for multi-tasking, but couldn't hold my attention full-time.  It was fun for the first couple of seasons, but the characters and story have played out.  If you're missing K.J. Apa, watch The Hate U Give again while hoping his agent gets him another worthy TV vehicle.

Third, Westworld s3.  To be fair, I'm probably going to watch the whole thing, because I love the visuals and the addition of Aaron Paul.  But what the heck is going on?  Who are all these people?  Maybe the pieces will come together, but as of now, I'm not even sure what the show is about.

What I'm Eating

As we made it to the grocery store this week, my wife acquired the necessaries for her famous Louisiana gumbo with chicken and andouille.  The filé powder we had already, not easy to come by in New England.

Remember, as your resources permit, to #SaveOurRestaurants.  We had goat cheese burgers from Billy's last week, and this week we have our eye on Brickyard Pizza Co.

What I'm Drinking

We're very fond of Gevalia's single-origin line, and Costa Rica Special Reserve is our favorite.  Tico ag, Swedish craftsmanship.

The Foxtale Dry Gin, from Portugal, is inspired by the fox of The Little Prince (Amazon; in The New Yorker): "the ideal digestive for a night with friends"—at a proper social distance, of course.  A solid choice, though I'm hard pressed to detect any particular botanical beyond the citrus and a hint of malt.

What I'm Doing to Stay Sane

Photo by JJBers CC BY-SA 4.0

East Bay Bike Path.  I haven't been able to run with the sprained ankle I dragged home from Africa, but biking has been OK.  And luckily, as yet, Rhode Island has not closed the bike paths with the state parks.  There was a rumor of bike path closure on Nextdoor.com, and I hope that doesn't come to be.  I admit that there have been some troubling concentrations of people at bike path choke points, as in the center of East Providence.  But if the paths close, there will only be more people squeezed along busy, sidewalk-less streets, such as mine, where cars compound the corona risk.  Hear me, o Honorable Governor.

Our long national nightmare lumbers on.