Today’s Washington Post carries this op-ed by Duke law professor Curtis A. Bradley and Harvard law professor Jack L.Goldsmith criticizing a recent court ruling that expanded aiding-and-abetting liability under the Alien Tort Statute of 1789 to saddle American corporations that did business with apartheid-era South Africa with massive liability for South Africa’s human rights violations during that era. According to Bradley and Goldsmith, the current South African government opposed the litigation, as did the Bush administration, citing the risk of adverse foreign-policy consequences. Nonetheless, a federal district court “supplanted its foreign policy views for those of the federal government and refused to respect South Africa’s efforts to move its society forward.” In so doing, the court also exposed these corporations to “crass retroactivity” by subjecting them to legal liability for transactions that were not within the scope of aiding-and-abetting liability at the time they took place.
As Bradley and Goldsmith point out, now that Harold Koh is slated to be State Department legal adviser, it’s unlikely that the Obama administration will seek reversal of rulings like this. Koh, “an intellectual architect and champion of the post-1980 human rights litigation explosion[, …] joined a brief in the South Africa litigation arguing for broad aiding-and-abetting liability.” (Koh, presumably, would recuse himself from any involvement as a governmental actor in this particular case.)
Even beyond basic questions of who properly makes American foreign policy and beyond concerns of fairness, American corporations and their shareholders, customers, and employees—in short, most Americans—ought to recognize their strong interest in not having Koh keep the floodgates open to litigation of this sort. It’s worth noting that among those who have countervailing economic interests are the outside law firms that make a killing representing corporate defendants in Alien Tort Statute actions.