Doe v. Unocal

I've been seeing a lot of complaints about the fact that the DOJ filed an amicus brief in a 9th Circuit case arguing for a more limited interpretation of the Alien Tort Claims Act. The lawsuit involves claims that Unocal was complicit in forced labor and other abuses committed by the Burmese military during the construction of the Yadana gas pipeline.

Given that DOJ is arguing that Unocal can't be held liable under the Alien Tort Claims Act, the complaints from the left have been predictable. Human Rights Watch says that this is a "craven attempt to protect human rights abusers at the expense of victims." Joe Katzman says that it is equivalent to "shilling for Saddam's regiume [sic] because he had favourable oil contracts with your state oil company." Jeanne D'Arc announced that "[t]his is the time to stand up for human rights, not corporate rights." And Joe Conason, astute as ever, says that "[i]deologues like Ashcroft are so disdainful of international law -- and so solicitous of corporate privilege -- that they find themselves excusing the most hideous misbehavior abroad."

But I have a visceral trust for the sort of "legal analysis" that consists merely of 1) deciding ahead of time which side you like better, 2) claiming that your preferred side should automatically win regardless of what the law actually says (this is "prejudice" in the most literal sense) and 3) claiming that anyone with a different view of what the law says must be an evil person because they didn't like your preferred outcome. You'd think the left would be more attuned to the vacuousness of this sort of argumentation; think of how many left-wing defense lawyers have been accused of supporting criminals when they got someone off "on a technicality" [i.e., by persuading the judge to follow the letter of the law].

So given that none of the above web commentators seem to have read DOJ's brief, I thought I'd look it up. It took quite a bit of digging on Google, but I finally found a link to it here.

Now, I should preface what I'm about to say with the disclaimer that I haven't found the other side's brief. And if there's one thing you learn from clerking, it's that it can be dangerous to opine on a lawsuit without reading what both sides have to say. So take what I have to say with a grain of salt. (And, by the way, consider whether the commenters mentioned above have been as forthcoming about the limitations of their own knowledge as to the legal arguments involved.)

I would divide DOJ's brief into four main arguments:

• Argument 1: The Alien Tort Claims Act, enacted in 1789, is a jurisdictional statute. It reads as follows: "[T]he district courts shall have original 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." What this does is give federal district courts the authority to hear a certain type of lawsuits. But it does not, of itself, create a cause of action for any particular type of wrongdoing. For a prospective plaintiff to have the right to take advantage of this jurisdiction, the plaintiff must find a cause of action somewhere else. DOJ Br. at 5-9.
  
  Comment: This argument seems almost indisputably correct. I don't see how anyone could read the Alien Tort Claims Act as creating a cause of action. It's strictly jurisdictional.
  
  
• Argument 2: Plaintiffs can bring claims that are based on the "law of nations" only if "that law has been affirmatively incorporated into the laws of the United States." Congress must specifically create a cause of action, in other words. DOJ Br. at 11.
  
  Comment: I'm less certain about this argument. I'd like to see more research and argumentation on whether the "law of nations" can give rise to a cause of action even in situations where Congress hasn't expressly put that cause of action into the United State Code. At least I'd like to see what the other side had to say.
  
  
• Argument 3: A proper cause of action cannot be found in non-binding UN resolutions, unratified treaties, or non-self-executing treaties. DOJ Br. at 12. Judicial creation or implication of causes of action is not allowed, particularly given the Supreme Court's unwilliness to imply private causes of action in congressional statutes. Id. In short, it is up to the political branches of government to create new causes of action, and where they have not done so, the judiciary shouldn't take the opportunity to innovate. Id. at 14-16.
  
  Comment: I largely agree with this point. It seems to be an accurate representation of the existing state of law.
  
  
• Argument 4: It might be especially intrusive and dangerous for the judiciary to be inventing new rights and causes of action in this arena. The Alien Tort Claims Act does grant jurisdiction to hear lawsuits brought by aliens based on the "law of nations." But the political branches have the right to decide what the "law of nations" is, i.e., on what forms of international law the United States agrees to. It should not be the prerogative of a single federal district judge to remake our foreign policy by creating a new basis for "deciding suits between foreigners regarding events that occurred within the borders of other nations, and in the exercise of foreign governmental authority." DOJ Br. at 21.
  
  Comment: I tend to agree with this argument. And I think this is what's really driving DOJ's decision to file an amicus brief here. They are nervous about the prospect of a flood of lawsuits that might interfere with our attempts to monitor or capture terrorists overseas.

The bottom line is this: The law doesn't right every wrong. Sometimes the law allows an alleged murderer to go free because the police didn't have a warrant to search his house. And here, it might be the case that the law doesn't allow a particular plaintiff to sue a big corporation for an alleged wrong committed by a foreign government. That doesn't mean that anyone who wants to follow the law is in favor of murder or in favor of the foreign government's wrongdoing.

UPDATE: I would have had an easier time finding DOJ's brief had I caught Max Power's post on the Unocal suit. Check out what he has to say.