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July 11, 2007
Bainbridge v. Chemerinsky: A High-Class Smackdown
I have a high-class set of friends. One, Steve Bainbridge (whom I'm also proud to have as a colleague), criticizes another, Erwin Chemerinsky (whom I wish were a colleague), about the latter's representation of the family of Rachel Corrie.
Corrie was an American pro-Palestinian activist who was killed when she attempted to stop an IDF bulldozer from demolishing Palestinian homes in Gaza. The case is controversial, and I don't pretend to know the specifics: her supporters say that Corrie was a peaceful protestor who was brutally cut down by the IDF; her detractors argue that she was a not-so-covert Hamas supporter who recklessly endangered herself in the middle of a conflict.
Corrie's family is now suing Caterpillar, which made the bulldozer, for damages, on the grounds that Caterpillar knew or should have known that the sale would enable the IDF to commit human-rights violations. For Ron Coleman, guest-blogging at Overlawyered (and sub silentio backed by Bainbridge), this is absurd:
Yes, a law professor is making this argument. Okay, a law professor who blogs at Huffington Post, but still? No, he's not a new face; but he certainly remains a brazen one. For in our bizarro world, right is a very special kind of wrong -- the promotion of violence (by the likes of Rachel Corrie) is peace;the sale of construction equipment (by Caterpillar) is murder; and fallacious legal argumentation is the product of one of the “the top 20 legal thinkers in America."
To my mind, this confuses the legal basis of the suit with the facts of this case. It seems to me perfectly reasonable as a general matter to argue that if a corporation knows that its product will be used by a government purchaser to commit human rights violations, then that corporation can be sued using an aiding-and-abetting theory. If the company doesn't know but should have known, then that is a closer case, of course, but certainly not implausible.
One relevant precedent here is the case of Doe v. Unocal, in which the Ninth Circuit held quite appropriately that if Unocal had paid the Myanmar government to provide it with "security" for its oil pipeline, knowing that the Myanmar Army's concept of "security" is the widespread massacre of any villagers who dare resist and the forced labor of hundreds of others, then Unocal can be held liable.
The problem, then, isn't the principle: it's the fact that it is being used by people like Corrie (or rather, her family), who may have been not a victim of human rights abuses, but rather a facilitator of them because of her support for Hamas. And it is being used against Israel, whose human rights record, for all its faults, many people consider to be quite good and certainly a far cry from egregious violators such as, say Myanmar.
Thus, if there is a criticism of Chemerinsky here. it is that he has exercised poor judgment in accepting this client. He might respond that even were this to be so, he needs to be involved in the case to protect the principle. Many of the most important civil rights cases were litigated on behalf of truly despicable clients. Hard cases make bad law.
Conservatives like Bainbridge should think about it this way: say a corporation sells sophisticated intelligence-gathering equipment to Fidel Castro's internal security forces. They, of course, use it to find a pro-democracy activist and then brutally torture her. Is it so unreasonable that the vendor should be held liable?
