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Neal Katyal is currently defending multinational corporations' right to own slaves before the Supreme Court right now in the consolidated cases of Nestlé USA v. Doe I and Cargill, Inc. v. Doe I. Justices Sotomayor, Kagan and Gorsuch do not appear to be convinced.
"You can go after the individual, you don't need to go after the corporation," Katyal says. Katyal's argument for the corporate slaveowners who pay his legal bills is that the Alien Tort Statute of 1789 doesn't allow former slaves to sue American corporations.
Kagan quizzed Katyal at one point, asking him if a former slave can sue one slaveholder. He said yes. Can a former slave sue ten slaveholders? Yes. But why not a corporation, Kagan asked. Katyal referred to precedent and dodged the question.
Even Justice Kavanaugh is skeptical of Katyal's pro-slavery arguments for his corporate paymasters. He said the Alien Tort Statute was previously a vehicle for international human rights enforcement but that Katyal's view would do extreme damage to that avenue of redress.
Katyal laughs at Kavanaugh's expressed concern for human rights and says he's using "overheated rhetoric."
Justice Barrett also appears skeptical of Katyal's arguments. Says under his theory that it would be almost impossible to bring a claim under the Alien Tort Statute.
Katyal's pro-slavery argument boils down to the costs finding for the former slaves would cause for American businesses and the potential harm it would have on U.S. foreign policy.
DOJ attorney up now. The government is taking the corporations' view. They do not want extraterritorial application of the Alien Tort Statute. They oppose corporate liability for owning slaves outside of the U.S.
"What's new about suing corporations?" Breyer asks--clarifying the untenable position that the corporations and gov have. He says there are nearly 200 such lawsuits under the Alien Tort Statute. "What's new about it? Is it a different rule again for partnerships? For LLC? Why?"
DOJ attorney says that many of those old lawsuits should be thrown out under recent Supreme Court precedent.
Alito asks why anyone would bring a claim under the ATS for conduct that solely occurred in the United States. DOJ attorney doesn't really have an answer here.
Alito also not convinced:
"If corporations cannot aid and abet then there would only be a sliver" of liability under respondeat superior.
"If corporations cannot aid and abet then there would only be a sliver" of liability under respondeat superior.
Sotomayor says the DOJ's argument is that there is no such thing as aiding and abetting liability in international law. Sotomayor then lists several instances in which aiding and abetting crimes have been found--including in the United States.
Sotomayor wants to know why the government doesn't think there is aiding and abetting liability for child slavery.
DOJ attorney doesn't have a real answer here.
DOJ attorney doesn't have a real answer here.
Kagan notes that many other countries hold their corporations liable for the kind of behavior Nestle and Cargill engaged in here. DOJ attorney is dismissive of what "other countries" do.
Kagan express concern about "leaving a foreign victim without a remedy when a U.S. corporation" is the party who is actually liable. She says that other civilized countries would not accept that, so why the disconnect?
Note: The so-called "civilized world" is a feature of ATS jurisprudence in the somewhat recent case of Sosa v. Alvarez-Machain. In other words: what "other countries" do is actually instructive for the justices to consider here.
Kavanaugh asks DOJ whether they have specific concerns about foreign policy or if it's just more general. DOJ attorney says it could have an impact on the government's alleged efforts to end child slavery. (A good way to end child slavery is to stop allowing Nestle to use it.)
Barrett skeptical that there is no aiding and abetting when a U.S.-based corporations makes plans to do business that involves slavery.
Paul Hoffman appearing now for the former slaves.
Roberts wants to know why doesn't this type of action--suing a corporation for using child slaves--present international relations concerns that have been noted by the Supreme Court in the past.
Hoffman says this isn't different from many other cases and that the U.S. Congress has passed other laws which have expressed their antipathy to child exploitation.
Roberts wants to know if Congress "has taken the ball now" by passing the Trafficking Victims Protection Reauthorization Act (TVPRA).
Thomas wants to know why the original TVPA doesn't displace the ATS--since the TVPA doesn't have corporate liability or aiding and abetting causes of action. Hoffman notes that Congress intended both laws (the ATS and the TVPA/TVPRA) to be complementary.
Thomas wants to know if the child slavery charges could be brought against the corporations using a different law or using diversity jurisdiction (CivPro term of art) instead of the ATS. Hoffman says no diversity was available and the ATS applied so they brought it under the ATS.
Thomas wants to know about aiding and abetting liability at the time of passage. Hoffman says there, in fact, was such a thing and that nowadays international law has developed so that aiding and abetting liability and corporate liability is accepted by the global community.
Breyer is concerned as to whether the allegations in the lawsuit actually rise to the level of aiding and abetting because there is so much child slavery in the world. And if the court decides in favor of the former slaves that could upset global relations and U.S. foreign policy
Hoffman catalogues how the corporations have been using child slaves. Breyer retorts: "That's just business. Blinking your eyes or keeping them open...do we want a court to tell businesses 'you can't do that anymore!'?"
Liberal Justice Breyer doing a great PragerU audition or left-wing critique by noting that slavery is just business.
Alito wants to examine the complaint now. He wants to find the precise allegation that the corporations had knowledge of the forced child labor. Hoffman struggling to find the language--notes that the 9th Circuit found the knowledge prong satisfied for aiding and abetting.
Alito pressing the issue and raising his voice. He wants to know if the plaintiffs allege that the corporate executives knew. Hoffman finally says, yes, they knew.
Sotomayor following up on Alito's line of questioning. She's not sure there's enough facts being pleaded that rise to the level of aiding and abetting here. Hoffman says the corporations had "control." Sotomayor responds: "I'm not sure what control means."
Sotomayor accuses Hoffman of "equivocating on [her] question." She wants him to show that there were affirmative acts made by the corporate executives and others at corporate headquarters.
Kagan asks a question about corporate domestic liability. The government's position is that since foreign corporate liability was foreclosed in another case, domestic corporate liability is unfair to maintain. Wants to know his thoughts on that apparent disconnect.
Hoffman rambles a bit. Mentions how the prior case included a plurality opinion...but doesn't have a good framework for sewing up this disconnect. He goes on to say that there probably isn't a good way to bridge the gap. (Clearly he believes the plurality opinion was wrong.)
Gorsuch wants to know why he should create a new cause of action for aiding and abetting. He's not sure why the ATS should be different when Congress "stands ready" to create causes of action. (Query: does Congress stand ready to do anything that increases corporate liability?)
Hoffman: "In fact, the Founders understood aiding and abetting liability. There was aiding and abetting liability in British common law." Says the first Congress--which passed ATS--would not want to limit liability for a place of injury. They wouldn't want corporations to get off
Kavanaugh waxing philosophical about the proper role of the judiciary and the proper role of Congress in international relations.
Kavanaugh says it is "hard to argue that corporate liability in international law is specific and universal." He says that's his overarching "concern" in this case.
Hoffman says there is a distinction between norms between private parties and norms that require state action. Says corporate liability need not be specific and universal because many other countries do it. Kavanaugh pushes back--says international law and tribunals do not.
Hoffman counters: the ATS is not an international law statute. It's a tort statute. It's been U.S. law since 1789. "Corporate liability is actually the norm--not the exception." (This is Hoffman's best answer all day.)
Barrett wants to turn the international relations question on its head. Asks is there any potential fallout for the court not ruling in favor of the former slaves here?
Barrett finishes up by asking a question about Jesner v. Arab Bank, which prohibits causes of action against foreign corporations.
Katyal back again: says the former slaves couldn't allege facts to prove knowledge of the child slavery.
Katyal said that the ATS wasn't really a human rights statute because it wasn't used for the first 200 years.
Katyal says that the Supreme Court shouldn't "be out in front" in creating new causes of actions and that Hoffman couldn't point to the specific norm against corporate aiding and abetting liability for slaveowners.
Katyal's final point is long and belabored. Here's how it starts:
"The queries today about: 'How can we exempt corporations? It makes no sense!' could be said about torture. But in the TVPA Congress said there was no liability for corporations....defer to Congress."
"The queries today about: 'How can we exempt corporations? It makes no sense!' could be said about torture. But in the TVPA Congress said there was no liability for corporations....defer to Congress."
"Same with extraterritoriality. Sometimes Congress extends a statute that way--like genocide--sometimes. it doesn't. Nothing in the ATS says it reaches an injury halfway across the globe." Says the ATS can only cover slavery that occurs in the United States.
"Do we want a judge deciding this?" Katyal asks--echoing Breyer.
"My friend's admission of just how open-ended and transformative his liability would be answers that question." Katyal and his corporate owners end their argument before the high court invoking the slippery slope.
"My friend's admission of just how open-ended and transformative his liability would be answers that question." Katyal and his corporate owners end their argument before the high court invoking the slippery slope.
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And here's my story for @lawcrimenews. Sorry for the delay. Having an editing back-up and this was quite a long piece about a complicated law with lots of moving parts: https://lawandcrime.com/supreme-court/neal-katyal-argues-u-s-corporations-should-not-be-liable-for-using-child-slaves-abroad-but-scotus-appears-unconvinced/
