NICK EICHER, HOST: It’s Monday morning, a fresh week and brand new year for The World and Everything in It. Today is the 4th of January, 2021.
Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard.
The justices of the U.S. Supreme Court return for oral arguments next Monday after their holiday break.
That should give us the time we need to get caught up on the four remaining arguments I’ve not yet covered. Remember, if you listen each Monday, you’ll learn something about every single case the justices hear by the time the term ends.
Today, two arguments for analysis.
This first case is now 15 years in litigation. But the context has a much longer history and it colors everything: modern-day slavery on the African continent.
EICHER: First, a bit of background from the Council on Foreign Relations. Sixty percent of the world’s cocoa comes from two countries: Ghana and Ivory Coast.
You’ll hear Justice Amy Coney Barrett use the French pronunciation of Ivory Coast, Cote d’Ivoire.
In these countries, the cocoa farms rely on child slave labor—a problem that despite worldwide attention has become even more prevalent.
Over the past decade, the proportion of children working on cocoa farms in those two countries increased. Ten years ago, not quite a third of the farm workers were children; now, the child work force has grown beyond 40 percent.
This, despite huge multinational companies committing to change.
REICHARD: Now for the case at hand: Six former child slaves from Mali kidnapped and sold to work the cocoa farms are suing. They’re seeking compensation from two American companies in American courts. They allege that Nestle, USA and Cargill, Incorporated had a hand in child slavery in Africa by using those farms in their supply chains.
The former child slaves bring their lawsuit under a law that is nearly as old as the country itself: The Alien Tort Statute is more than 230 years old, and I’m going to need to come back to it quite a bit, so remember the initialism ATS—Alien Tort Statute.
The ATS allows foreign nationals to seek redress in U.S. federal courts for alleged violations of international law.
Former Acting Solicitor General Neil Katyal defended the companies, which lost the case in lower court on grounds of aiding and abetting the slave trade.
But Katyal focused attention on the language of the ATS and its requirements to prevail according to Supreme Court precedent.
KATYAL: Nestle and Cargill abhor child slavery. This case isn’t about that. It’s about whether this old statute applies extraterritorially and who can be sued. When asked where in the complaint is there any knowledge of slavery by the defendants, my friend couldn’t answer. Zilch. This case is an easy one on extraterritoriality where there is no U.S. injury and little U.S. conduct.
Katyal’s argument is that this is not the proper law under which to bring this lawsuit for three reasons:
One, the abuse took place in Africa, not the United States.
Two, this law applies only to natural persons, not corporations.
And three, the statute requires a violation of international law. But in that, you’ll find no consensus about corporate liability among the nations.
Justice Barrett pushed back:
BARRETT: You say that the focus of the tort should be the primary conduct, so, here, what was happening in Cote d’Ivoire, rather than the aiding and abetting, which you characterize as secondary. But why should that be so? I mean, let’s imagine you have a U.S. corporation or even a U.S. individual that is making plans to facilitate the use of child slaves, you know, making phone calls, sending money specifically for that purpose, writing e-mails to that effect. Why isn’t that conduct that occurs in the United States something that touches and concerns, you know, or should be the focus of conduct, however you want to state the test?
Key phrase: “touches and concerns.” It comes from a 2013 Supreme Court ruling that says a plaintiff cannot file an ATS suit unless his claim “touch[es] and concern[s] the territory of the United States.”
Important as the phrase is, of course, the two sides dispute its legal meaning.
Katyal argued the ATS doesn’t apply liability to executive planning efforts from headquarters in the United States. To do that, he warned, would be to create a “breathtaking kennel of problems,” with no limit on liability.
But lawyer for the former slaves, Paul Hoffman, pointed to the Founding Fathers to support his side.
HOFFMAN: The founders were particularly concerned about actions of U.S. citizens that might lead to foreign entanglements, and their response was to provide for a federal judicial forum to resolve such disputes based on the rule of law. The recent discovery of legal opinions written by Thomas Jefferson and Edmund Randolph in the 1790s make it clear that the ATS applied when U.S. citizens violated the law of nations on foreign soil.
Child slavery is a violation of international norms, ergo, this law applies to these companies who must have been aware of the ongoing problem of slave labor in Africa.
Several justices had sympathy for Hoffman’s clients.
Justice Samuel Alito:
ALITO: Mr. Katyal, many of your arguments lead to results that are pretty hard to take. So suppose a U.S. corporation makes big show of supporting every cause de jure but then surreptitiously hires agents in Africa to kidnap children and keep them in bondage on a plantation so that the corporation can buy cocoa or coffee or some other agricultural product at bargain prices. You would say that the victims who couldn’t possibly get any recovery in the courts of the country where they had been held should be thrown out of court in the United States, where this corporation is headquartered and does business?
KATYAL: Justice Alito, I have three buckets of answers to this…
Katyal, for the companies, argued that hypothetical is not this case. The original plaintiffs aren’t suing their captors; they are trying to hold American corporations liable. And they attempt to do so on a connection too slender to fit within the ATS. To paraphrase from a different famous case: “If the law doesn’t fit, then you must acquit.”
Katyal also encountered pushback from Justice Elena Kagan.
He agreed with her that the former slaves could sue individuals under the Alien Tort Statute. So why should corporate structure make any difference?
KAGAN: — if you could bring a suit against 10 slaveholders, when those 10 slaveholders form a corporation, why can’t you bring a suit against the corporation?
KATYAL: Because the corporation requires an individual form of liability under…a specific norm, of — of — under international law, which doesn’t exist here….
KAGAN: I guess what I’m asking is, like, what sense does this make?
That question came up a lot as the justices grappled with liability at the individual and corporate levels of conduct.
Justice Stephen Breyer pondered the part of the ATS that deals with “international norms.”
Listen to this exchange with Hoffman, lawyer for the former slaves:
BREYER: Now what counts as aiding and abetting for purposes of this statute? It seemed to me that all or virtually all of your complaints amount to doing business with these people. They help pay for the farm. And that’s about it. And they knowingly do it. Well, unfortunately, child labor, it’s terrible, but it exists throughout the world in many, many places. And if we take this as the norm, particularly when Congress is now working in the area, that will mean throughout the world this is the norm.
Congress is working on the problem, and several justices wondered, why not just let Congress finish its work?
For his part, Hoffman pounded on this point: namely, that these American companies’ executives knew they were maintaining a tainted supply line.
As for the other side’s warning against getting tangled up in foreign policy? Hoffman countered, that’s nonsense. This is a lawsuit against U.S. corporations. They don’t set foreign policy.
However the Supreme Court decides, this case has huge implications for human rights. Not to mention pressure on companies to restructure their supply chains, and maybe even on you, next time you enjoy products that include cocoa and chocolate.
This last case today involves a technical question about filing legal documents on time.
Here, a man retired from the railroad and applied for a disability annuity in 2006. The U.S. Railroad Retirement board denied it. He tried again later and won. But then he wanted the board to reconsider his earlier request.
The only question is whether the Railroad Retirement Board’s decision not to reopen old claims is the kind of “final decision” that then lets the courts get involved to review it.
Now, usually in these really dry cases, I search high and low for moments of levity. Something, anything light to break the dullness. But ever since Justice Antonin Scalia died almost five years ago, those moments are really few and far between these days—and with oral arguments held virtually—it’s just that much rarer.
That’s this week’s Legal Docket.