Kiobel v. Royal Dutch Petroleum: Continuing Where I left Off

May 2, 2013

Law schoolEditor’s note: In January, law students had the chance to weigh in on how the court should rule in Kiobel v Royal Dutch Petroleum by entering the ABA Section of International Law’s Rona R. Mears Student Writing Competition & Scholarship Awards. This is our first of two posts from the law students who won the competition.

As a student in Paul Hoffman’s International Human Rights clinic at the University of California Irvine School of Law (UCI), I had the opportunity to work on Kiobel v Royal Dutch Petroleum Co., helping to prepare for the second round of oral arguments.

By the time the Rona R. Mears Writing Competition and Scholarship Awards topic was announced, addressing the question of how the Supreme Court should rule in Kiobel, I had come to care a great deal about the case.  After spending considerable time thinking about the kinds of arguments that might appeal to at least five Supreme Court Justices, I entered the competition because I was attracted by the invitation to think of a broader audience in crafting arguments about what the Court ought to do.

After researching the history of the case and of the Alien Torts Statute (ATS), I felt confident that I could make a well-founded argument for why the plaintiffs should have their day in court.  I also thought that I had a sense of the kinds of appeals that were most likely to persuade a majority of the Court to accept this argument.  The paper felt manageable, until I tried writing.

The problem I kept running up against was that the essay prompt required original research and analysis.  I had read dozens of briefs and law review articles, and I felt I had a good grasp of the most important issues in the case.  But when it came to writing, I felt unable to do more than say what had already been said, albeit with different words, and in oversimplified terms.  After a number of false starts, I began to view the contest as an exercise in futility.  Rather than wasting any more time trying to re-work arguments that had been made countless times before, I would cut my losses and give up on the paper.

I think that deciding not to enter the contest allowed me to think about the essay in new ways.  The following day, I realized that the contest offered a unique kind of freedom: unlike the litigants or amici in the actual case, I had no obligation to approach the Court strategically.  Casting strategic considerations aside meant there was no need to reassure the Court that sufficient tools existed to weed out troubling ATS cases.  Instead, I could say what I really thought: the problem that the Court should be concerned with is not that there are too many ATS cases, but that there might be too few.  Rather than searching for ways to limit the reach of the ATS, the Court should instead ensure that the statute is robust enough to enable to United States to meet its obligation to provide a domestic remedy for gross human rights abuses in violation of the law of nations.

The announcement of the Kiobel decision, just a week before the Rona R. Mears awards ceremony, makes the award somewhat bittersweet.  I wrote the paper because I believed that the Kiobel plaintiffs deserved to have their claims heard on the merits, and because I thought it important to reaffirm the vitality of the ATS as a weapon in the global struggle for human rights.  The decision bars the courtroom doors to the plaintiffs and further limits the reach of the ATS.  It is difficult to savor the award under the circumstances.

And yet, I am truly honored to receive the award, not so much as an individual accomplishment, but because I could have never written the paper without all that I learned from the UCI clinic and from so many activists and scholars in the human rights law community.  The award is recognition of the necessity of the work done by this community.  Because the award links me to this work, I cherish it.