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?

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.