While the boldest lawyers are only starting to ponder how their advice may help (or hurt) human rights, John Ruggie himself has offered a breathtaking example by citing Kiobel v. Royal Dutch Shell , in which Shell is hoping to persuade the U.S. Supreme Court that it's immune from alien tort liability for alleged complicity in torture and killings by Nigeria. In an issues paper on Kiobel , Ruggie queries whether the responsibility to respect human rights called for Shell, if possible, to avoid a broad attack on extraterritorial application of the Alien Tort Statute.
"Should the litigation strategy aim to destroy an entire juridical edifice for redressing gross violations of human rights," questions Ruggie, "particularly where other legal grounds exist to protect the company's interests?" As for the law firm's responsibilities, Ruggie asks: "Would they encompass laying out for their client the entire range of risks entailed by the litigation strategy and tactics, including concern for their client's commitments, reputation, and the collateral damage to a wide range of third parties?" Ruggie's apostle, John Sherman of the nonprofit Shift, puts it this way: "Just because you can make an argument doesn't mean you should."
I'm not sure that Shell's counsel, Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan, had any choice but to run with it when Justice Anthony Kennedy redirected the argument in Kiobel to extraterritoriality. And it remains possible (indeed, Kennedy seems to prefer) that the final ruling in Kiobel will preserve some noncorporate human rights liability under the ATS. But I love the way that Ruggie thinks. And the ABA would like all lawyers to adopt his mentality.