12/24/2008 05:12 am ET Updated May 25, 2011

Bowoto v. Chevron : Approaching the Arguments

In week four of the trial, we saw Chevron make its case before a San Francisco jury. To my eyes, it was the legal equivalent of The Empire Strikes Back--the dark lords of the extractive industries pitting their limitless resources against a scrappy band of rebels.

We even had a Karl Rovian figure -- Chevron's General Counsel Charles James--silently presiding over the defendants' table. (Read Andrew Woods excellent exposé here.) Unfortunately, my metaphor gets mixed on the plaintiffs' side: attorney Bert Voorhees is probably more Will Riker from Star Trek: TNG than Han Solo.

My point: Chevron's defense has been logical, thorough and relentless. And they have managed to put the Nigerian protesters themselves on trial. Have the scales tipped? We'll know soon enough. Chevron's team announced they would rest their case on Monday, November 24th. Jury instruction and closing arguments will begin Tuesday.

As we approach the close, I'd like to examine a specific type of legal reasoning at work in the arguments: the ex ante perspective.

But first an illustration: Why do police negotiators generally refuse to pay ransom for hostages? To a family, making a payment to secure a loved-ones' release may seem like an acceptable cost. But to do so would actually encourage more kidnappings by providing an incentive to would-be kidnappers. If we adopt a more forward-looking perspective, we see that the future costs of paying ransom outweigh the immediate benefit.

This is a classic example of ex post and ex ante reasoning. The ex post -- 'after the fact' -- approach takes a retrospective look at a discrete set of facts. We often think of civil lawsuits in this light: resolving a particular dispute or righting a wrong.

But the ex ante -- 'before the fact' -- perspective takes the matter to be resolved as the beginning of a rippling chain of consequences. In law, an ex ante argument tries to reason through the potential impact of a court's decision by studying what rule it creates, what precedent it sets. If you're following the Bowoto v. Chevron case, it's likely because you believe that the case will be precedent setting. You've adopted the ex ante view.

Actually, the ex ante perspective runs throughout Bowoto v. Chevron. In fact, one of the cornerstones of Chevron's defense is an ex ante argument. As Charles James put it:

"If plaintiffs had their way, a company could not report hostage taking to law enforcement authorities without facing the threat of a lawsuit in the U.S."

The reasoning is crystal clear: if Chevron is held liable, corporations will have a dangerous incentive not to call on legitimate law enforcement in the future. Chevron's attorneys offered this argument in their opening statement and I guarantee they'll make it again in closing.

But anyone who's ever taken the LSAT should be able to spot the assumptions: first, that the situation at Parabe in May 1998 was a hostage taking; second, that Nigerian Naval forces and Mobile "Kill and Go" Paramilitary Police were legitimate law enforcement officials.

I think this quote speaks to the latter point. The U.S. State Department's 1998 Human Rights Report on Nigeria observed:

Security forces committed extrajudicial killings and used excessive force to quell antigovernment protests as well as to combat crime, resulting in the death or injury of many individuals, including innocent civilians. Security forces tortured and beat suspects and detainees. There were reports of sexual abuse of female suspects and prisoners by security forces. Prison conditions remained life threatening; many prisoners died in custody [...] [T]he Government repeatedly used arbitrary arrest and detention [and] repeatedly denied persons fair public trials by trying civilians and members of the armed forces before military tribunals...

Of course, there are ex ante arguments on the plaintiffs' side as well. One of them flows directly from Charles James' assertion: Indeed, when a multinational corporation operates in a brutal dictatorship (à la Nigeria in the 90s, Burma today) they shouldn't necessarily call on law enforcement. Or as Senator Dick Durbin stated in a September 24, 2008 Human Rights subcommittee hearing,

"[W]hen American companies choose to go into these countries, they assume a moral and legal obligation to ensure that security forces protecting their operations do not commit human rights abuses.

Holding Chevron liable will thus set up incentives to make corporations think twice before sending in the hired guns.

If you look closely, the ex ante perspective is central to the human rights strategy underlying Bowoto v. Chevron and the upcoming Wiwa v. Royal Dutch Shell case. In both cases, civil lawsuits are being use as a lever to pry extractive industry corporations from their traditionally unsavory partnerships with dictators.

These cases are only partially about redress for past wrongs. No amount of civil damages will bring back the lives of the murdered activists. No amount of civil damages will likely repair the ravaged ecosystem of the Niger Delta. No one's hopes are pinned to the ex post implications of these cases.

Instead, we hope that by shining a light on corporate complicity--and raising the costs of that complicity--we will give corporations an incentive to shun dictators and demand more democracy and more human rights compliance from the governments with which they do business. In places like the Niger Delta or the Thai-Burma border, we might never pry the extraction rights from the cold dead hands of Big Oil. But at least we can make them take their moral and legal obligations more seriously.

Subscribe to the Politics email.
How will Trump’s administration impact you?