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3 lawyers test human rights cases from abroad in Supreme Court

The Supreme Court will hear a case Monday which could determine whether cases involving foreign governments committing atrocities in their own countries should be heard in the US court system.

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With no recourse in Nigeria, Esther, who had received asylum in the United States, filed a lawsuit in federal court in New York alleging among other things that Shell cooperated with the Nigerian military, resulting in crimes against humanity. She relied on a 200-year-old U.S. law called the Alien Tort Statute. While the case was under way, Shell won a ruling in September 2010 from the influential 2nd U.S. Circuit Court of Appeals that said Shell could not be held liable under the statute because it was a corporation. It was a major shock to human rights lawyers, who had brought more than 100 such cases against corporations in the previous two decades.

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TEAMING UP AGAIN

The ruling quickly caught the attention of John Bellinger, an attorney at the law firm Arnold & Porter. In a series of interviews with Reuters, Bellinger, 52, discussed his actions over the subsequent 18 months. He stressed that he was speaking in a private capacity rather than as a representative of his clients in the Kiobel case.

Bellinger believed Kiobel's lawyers were likely to petition the Supreme Court. Sure enough, in October 2011 the court agreed to take the case on the narrow question of whether corporations could be held liable under the statute.

Bellinger, who had been State Department legal adviser in the Bush administration, had bigger ideas. He wanted to present the court with arguments he had heard from foreign governments while he was at the State Department. Back then, Australia, BritainCanada and others had protested when cases were brought under the Alien Tort Statute. They argued that U.S. courts had no business judging events that took place on foreign soil.

When the Supreme Court accepted the Kiobel case, Bellinger started emailing and calling governments that had opposed previous Alien Tort Statute cases to see whether they wanted to file a brief and whether they already had legal representation. But none of those he contacted were ready to commit, leaving him with no one to represent.

In November last year, Bellinger called Shell's lawyer, Kathleen Sullivan, who had been one of his professors at Harvard Law School. Sullivan, who declined to comment for this story, was preparing to argue the question that was before the Supreme Court at the time: whether the statute applied to corporations. Bellinger says she mentioned to him that former U.S. Solicitor General Paul Clement was writing a brief for IBM in support of Shell. IBM is one of dozens of corporations that are defendants in another case, brought by South Africans who suffered abuses under apartheid.

Clement, a 46-year-old conservative wunderkind, has argued more than 50 cases before the nation's top court. In late 2011 he was working on some of the nation's highest-profile cases, including defending Arizona's immigration law and a federal law that defines marriage as a union between a man and a woman.

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