MARY REICHARD, HOST: Good morning!
The Supreme Court considers the problem of child slavery and whether American companies are complicit.
NICK EICHER, HOST: That’s ahead on Legal Docket.
Also today, the Monday Moneybeat. Financial analyst David Bahnsen on the lessons of 2020 and what he’s expecting in the year ahead.
Plus the WORLD History Book. 500 years ago this week, the Pope excommunicates Martin Luther.
REICHARD: It’s Monday, January 4th. This is The World and Everything in It from listener-supported WORLD Radio. I’m Mary Reichard.
EICHER: And I’m Nick Eicher. Good morning!
REICHARD: Up next, Kent Covington with today’s news.
KENT COVINGTON, NEWS ANCHOR: 117th Congress convenes, Pelosi reelected as speaker » AUDIO: [Gavel]
A new U.S. Congress is now officially in session.
AUDIO: Pursuant to the Constitution to the 20th Amendment of the Constitution of the United States for the meeting of the 117th Congress of the United States, the House will come to order [gavel strike]
Congress convened Sunday, swearing in lawmakers. Both chambers opened at noon, as required by law, but with strict COVID-19 protocols.
And House Speaker Nancy Pelosi will hold onto the gavel for at least two more years. Members reelected her to the post on Sunday.
But she’ll have her work cut out for her with the slimmest Democratic House majority in decades—222-to-211.
In the Senate, Majority Leader Mitch McConnell opened the session in the upper chamber, not knowing how much longer he’ll be the majority leader.
MCCONNELL: We gavel in today like 116 have gaveled in before us with plenty of disagreements and policy differences within our ranks, but all swearing the same oath to support and defend the same Constitution.
Tomorrow’s double runoff election in Georgia will decide control of the U.S. Senate.
Group of GOP senators to challenge certification of presidential election » Meantime, a growing number of Republican lawmakers continue to call the results of November’s presidential election into question.
Sen. Ted Cruz is leading a group of 11 senators and senators-elect in support of President Trump’s continuing push to challenge the results. Cruz said in light of election fraud allegations, the lawmakers will attempt to stop Congress from certifying the election.
CRUZ: We will together object to certification in order to force the appointment of an emergency electoral commission to perform an emergency audit of the election results to assess these claims of fraud.
But critics say courts have already assessed the claims and have widely rejected them.
And several GOP senators have signed a statement saying the election is over and “it’s time to move forward.”
The Electoral College officially affirmed President-elect Joe Biden’s victory last month. Congress is scheduled to certify those results on Wednesday.
COVID-19 deaths top 350,000 in U.S. » More than 350,000 Americans have now died from COVID-19. And officials expect that number to swell along with the total case count after holiday gatherings.
The arrival of a new, more contagious strain of the virus in the United States could also fuel the surge.
But the government’s top infectious disease specialist, Dr. Anthony Fauci, told ABC’s This Week…
FAUCI: Some little glimmer of hope is that in the last 72 hours, they’ve gotten 1.5 million doses into people’s arms, which is an average of about 500,000 a day, which is much better than the beginning when it was much, much less than that.
The vaccine rollout has been slower and bumpier than expected. But Fauci said as the immunization push picks up steam, he believes vaccinating 100 million Americans in 100 days is an achievable goal.
He also said existing vaccines appear to be effective against the new variant of the virus.
British prime minister warns of tougher lockdowns » Across the Atlantic, the British government is still scrambling to contain that new strain of the coronavirus. Infection rates there have surged to their highest recorded levels.
And Prime Minister Boris Johnson warned Sunday officials may have to order stricter lockdowns. He told the BBC…
JOHNSON: It may be that we need to do things in the next few weeks that will be tougher in many parts of the country. I’m fully, fully reconciled to that. And I bet the people of this country are reconciled to that.
But he said he still expects conditions to improve heading into the spring.
The U.K. has recorded 50,000 new infections per day over the past six days.
According to figures from Johns Hopkins University, the U.K. is alternating with Italy as the hardest-hit European nation.
Singer Gerry Marsden dies » MUSIC: [You’ll Never Walk Alone]
Singer Gerry Marsden has died. Mardsen was lead singer of the 1960s British group Gerry and the Pacemakers, which turned out hits like “Ferry Cross the Mersey” and “You’ll Never Walk Alone.”
MUSIC: [You’ll Never Walk Alone]
Marsden’s family said he died Sunday “after a short illness in no way connected with COVID-19.” He was 78 years old.
I’m Kent Covington.
Straight ahead: a case of child slavery at the Supreme Court.
Plus, a famous UFO sighting in France.
This is The World and Everything in It.
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.
MARY REICHARD, HOST: Coming up next on The World and Everything in It: The Monday Moneybeat.
NICK EICHER, HOST: Financial analyst and advisor David Bahnsen joins us now for the first time in 2021. And so before we get too far away from 2020, let’s talk a bit about lessons that we derived from what we went through in the past year. Obviously, COVID’s the big story and the policy response to it. But what would you say are the big lessons of 2020 in the economy generally, the markets, you choose.
DAVID BAHNSEN, GUEST: Yeah, let’s start with the economy. I think that we learned a lot throughout the year about how incredibly important it was to enter a troubled economic time with a strong economy.
When you enter a recession with an economy that has been deteriorating for some time before the recession, it really is significantly different. And the underlying resilience—particularly the strong labor market, the buildup we had seen in some business investment throughout 2017, 18, and 19. It enabled us to come into 2020 on strong economic footing. And when this pandemic came and the shock and awe of the economic contraction of late Q1 and into Q2, I believe that that is the major economic story of what was a really, really bad moment—unforeseeable—not being as bad as many feared, not being as bad as it could have been, largely because there was a foundational economic strength.
Now, when I say that’s the big economic story, that’s somewhat backward-looking because the really big economic story that I’m not going to lose sight of is the go-forward reality of an economy that has completely intertwined with excessive government debt and a Federal Reserve, a Central Bank that has to sort of facilitate that reality. So, I think that there is plenty to be worried about going forward. And yet the reality of this 2020 economic year was vastly different than people expected.
EICHER: What would you say is the biggest worry with that intertwining of the big debt and the Fed’s involvement with the day-to-day of our economy?
BAHNSEN: Well, the biggest worry is the cause of it, which is the excessive government debt. And the biggest worry of excessive government debt is actually not that we can’t afford it, which is generally what many people focus on. And I understand why. There’s sort of a logic and a rationality to the idea of saying there’s this excessive, huge number. We can’t afford it. Ergo, something’s really bad.
The truth is that I think there’s a worse problem than just affordability and that is what it does to the society, what it does to the economy, which is crowd out the private sector. So, I wish that there was a more basic economic understanding—and I hope that we can provide that to the listeners even through our conversations here each week, Nick. I want people to understand that the government doesn’t have any money. And when they spend more—sometimes it’s necessary—but no matter what, necessary or not, anything they’re spending is a dollar that they took from the private sector. They either take it through the form of taxing it or borrowing it. And a borrow is a tax as well. It just gets paid in the future.
And so therefore you have to ask yourself, where do you want more dollars to be? In the hands of the private sector where there’s a profit motive, where there’s capital allocation, where there’s rational decision making, best use? Or do you want more dollars in the hands of the government?
Well, we need some dollars in the hands of the government. They have to run the government. But as this percentage of our economy continues to increase more and more and more, the GDP percentage the government represents has gotten to a point that it will suffocate economic growth in the future. And I think so many people are used to thinking only about an apocalypse and not what could even be worse. Which is 30 years of not having an apocalypse but not having sustained, real, organic economic growth. Much like Japan.
And that is the economic outlook America seems more and more determined to go down.
EICHER: OK, so I think that sets up 2021 a bit of a look-ahead here. We’ve got new policymakers in town. In 2020, we had a White House in the hands of Republicans—not your traditional Republicans in the sense of being a little stingier on government spending (and I don’t mean “stingy” in a bad way)—now, to a Joe Biden administration and possibly Democrat control of the entire Congress. So, how do you look at ’21 versus 2020?
BAHNSEN: I am trying to figure out who these stingy people are you’re talking about that have been there for the last few years. I haven’t had a chance to meet any of them.
So, yeah, I think that actually the one advantage to a Democrat being president is that Republicans do magically become stingy again. But the fact of the matter is, no, we don’t really have any party or branch of government—executive or legislative—that is particularly interested in holding back spending. It may just be a question of how it gets positioned or framed.
But I expect that there will be an ongoing effort to use the purse of the government, which we’ve already said is really the purse of the private sector, to fund a lot of these things. And some will probably be better projects than others.
But it is going to be different. It’s going to be mostly visible in the regulatory side. I think that there has been a pretty substantial and helpful deregulatory environment across a lot of executive branches of government for the last four years and I expect that to mostly change.
I don’t know, though, that there’s going to be much change on the tax and spending side. I don’t think that there’s a legislative mandate to do so. We have an election tomorrow that could really codify that numerically—certainly if one or both of these Georgia Senate seats stay as they are, which is very, very possible. Then there’s not even a conversation. But I think even if it does go to a 50-50 Senate, it’s going to be very difficult to have the political will. Keep in mind, it’s not just the Senate, Nick. The House. The Democrats loss net-net 15 seats. And they’re now in that position where they know in 2022 the way midterms go in the first year of a presidency is usually not very good. And I don’t think that it will be a really smart use of the political capital to immediately go try to raise taxes in the middle of a recession.
EICHER: Alright, David Bahnsen, financial analyst and advisor. Happy New Year! Looking forward to the possibility of a Covid-free 2021.
BAHNSEN: Absolutely. Well, Happy New Year, Nick.
NICK EICHER, HOST: Next up on The World and Everything in It: the WORLD History Book. This week, a notorious excommunication, the arrest of five members of a Soviet spy ring, and an out-of-this-world mystery.
Here’s WORLD senior correspondent Katie Gaultney.
MUSIC: [CREDO BY MONKS CHOIR OF THE ABBEY OF ST. OTTILIEN, GERMANY]
KATIE GAULTNEY, SENIOR CORRESPONDENT: Martin Luther began his New Year in 1521 with a stern message from the pope. It’s been 500 years since Pope Leo X issued the papal bull Decet Romanum Pontificem, excommunicating Luther from the Catholic Church.
Stephen Nichols, president of Reformation Bible College, explains the gravity of that move.
NICHOLS: This is a moment in time when to be outside of the church meant that you are outside of salvation.
The decree came more than three years after the German theologian catalyzed the Protestant movement in Germany with his 95 theses. That document, of course, condemned Catholic leadership for the corrupt practice of selling indulgences for forgiveness of sins. And Luther was warned that he should recant or risk excommunication. The 2003 movie Luther, starring Joseph Fiennes, imagined one such warning.
LUTHER: My criticism was not of the Holy Father himself, but of those rogues who claim to represent him. You have been summoned to appear by Rome. You are threatened with excommunication.
In fact, Luther had publicly burned a prior papal bull warning him he was on thin ice. Frank James, president of Biblical Theological Seminary, said Luther had made the situation untenable for the Catholic Church.
JAMES: Some people ask the question whether or not Luther was kicked out of the church or whether he left the church. Well the answer is both because Luther made that situation so impossible for the medieval church that they had to excommunicate him. So he really didn’t give them any choice.
As we know, he refused to recant. To this day, the Catholic Church still has not lifted Luther’s excommunication, though it joined with Lutherans and Methodists in 1999 and 2006 to agree on a “common understanding of justification by God’s grace through faith in Christ.”
Jumping ahead nearly four-and-a-half centuries, to January 9, 1961, when British authorities announced they had uncovered the Soviet Portland Spy Ring in London.
The spy ring was made up of Brits Harry Houghton and Ethel Gee, Americans Morris and Lona Cohen—masquerading as British booksellers—and Soviet Konon Molody, under the alias of “Gordon Lonsdale,” a Canadian businessman. The group was working against the British government on behalf of the Soviet Union. The USSR’s biggest target? A nuclear submarine called Dreadnought.
QUEEN ELIZABETH: I name this ship Dreadnought. May God bless her and all who sail in her.
It had sophisticated technology for the day, particularly with its sonar and underwater concealment capabilities.
And the Soviets wanted those plans. They pulled out all the stops, with fake passports, dead drops, “microdots” of information that could only be read under a microscope, and concealed cameras.
The espionage came to an end on January 7, 1961, when an MI5 sting operation led to the arrests of the five spies. But many in British intelligence believe other Soviet operatives involved managed to escape. Here’s journalist Chapman Pincher talking to the BBC in 1993.
PINCHER: There were others, beyond question, as far as MI5 is concerned. That a number of people had escaped because the police blew the investigation too early.
And from intrigue on planet Earth to an interstellar mystery?
MUSIC: [UFO MUSIC]
January 8th marks 40 years since a farmer in France spotted an unidentified flying object, dubbed by science magazine Popular Mechanics “perhaps the most completely and carefully documented sighting of all time.”
NICOLAI: [Farmer Renato Nikolai explains UFO sighting]
That’s Renato Nicolaï, a 55-year-old farmer in Trans-en-Provence who reported the UFO. He said he heard a whistling sound on his farm around 5 p.m. That’s when he claims a saucer-shaped object about 8 feet in diameter landed about 150 feet away from him.
He described it as “the color of lead.” He said it had reactors or feet, and trapdoors, and it took off almost immediately and disappeared, leaving burn marks in about a six-foot, circular area where he alleged it landed.
Nicolai assumed it was a military space vehicle, so he notified the local gendarmerie the next day. A French space agency investigated. Its analysis of the burned, depressed ground found the damage resulted from a mechanical pressure of as much as 5 tons, and it generated heat of over 1,000 degrees Fahrenheit. They found trace amounts of phosphate and zinc in samples taken from the area.
But after a two-year investigation, they couldn’t determine what might have caused the damage. Skeptics think the markings in the field were caused by cars.
MUSIC: [MR. SPACEMAN BY THE BYRDS]
That’s this week’s History Book. I’m Katie Gaultney.
NICK EICHER, HOST: Tomorrow: the urban-rural divide. We’ll tell you what’s driving the political and social divisions between America’s cities and the rest of the country.
And, Emily Whitten has the first Classic Book of the Month for the new year.
That and more tomorrow.
I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard.
The World and Everything in It comes to you from WORLD Radio.
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