Jurisprudence

Prominent Anti-Trump Attorney Asks the Supreme Court to Let Companies off the Hook for Child Slavery

Neal Katyal’s legal theory on behalf of Nestle and Cargill might be too extreme even for this ultraconservative court.

Katyal testifies before the Senate as Gorsuch smiles, sitting in the gallery behind him.
Neal Katyal testifies on behalf of now-Justice Neil Gorsuch. Tasos Katopodis/Getty Images

On Tuesday, the Supreme Court confronted a seemingly simple question: If an American corporation aids and abets child slavery in a foreign country, can its victims sue the company in an American court? Given that SCOTUS has repeatedly granted corporations the same rights as actual humans, you might think the answer is obvious. But it isn’t, because the same justices who think corporations deserve free speech and religious liberty do not believe they should be saddled with the same legal responsibilities as real people. Neal Katyal, who defended the companies accused of abetting child slavery, proposed an extreme theory that would shield all corporations from lawsuits under a crucial federal law. A majority of justices might not be ready to endorse this radical position. But they may still find a way to let Katyal’s clients off the hook.

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Although Katyal is a staunch critic of Donald Trump who frequently represents progressive causes, he sided with corporate interests—and the Trump administration—on Tuesday. The case involves a class-action lawsuit filed by six citizens of Mali. These individuals were allegedly trafficked to the Ivory Coast between the ages of 12 and 14. Once there, they were allegedly forced to work on cocoa plantations for no pay and little food. They say they were regularly whipped and tortured by overseers who routinely inflicted sadistic punishments. One plaintiff tried and failed to escape; when he was caught, his overseers allegedly cut the soles of his feet, rubbed chile pepper into the wounds, then tied him to a tree and beat him until he sustained severe, permanent injuries. Such atrocities on the Ivory Coast’s cocoa plantations are well documented.

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The plaintiffs also claim that two U.S. corporations, Nestle and Cargill, aided and abetted their enslavement. They assert that both companies knew their suppliers enslaved children yet continued to provide “financial and technical assistance to cocoa plantations.” The companies allegedly exerted substantial influence over the plantations to maintain the supply of cheap cocoa even after discovering human rights abuses.

This complicity, the plaintiffs allege, renders the companies liable under the Alien Tort Statute. First passed in 1789, the ATS gives federal courts authority to hear lawsuits filed by foreigners alleging a violation of international law. In theory, the ATS should put America at the vanguard of human rights protection, opening the nation’s courthouse doors to noncitizens who seek accountability for violators of the law of nations. In practice, the law barely exists anymore, because the Supreme Court’s conservative justices have relentlessly hacked away at it. Time and again, the court has strictly limited the ATS’ application, despite strong evidence that it was meant to be interpreted broadly.

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Two years ago, by a 5–4 vote, the conservatives granted foreign corporations immunity from ATS lawsuits. On Tuesday, Katyal asked the court to expand this immunity to American corporations—meaning, in effect, that no corporations, foreign or domestic, can be sued under the statute. (He was joined by the Trump administration, which sided with Nestle and Cargill.) In his brief, Katyal argued that allowing corporate liability would “place U.S. firms at a competitive disadvantage compared to companies in countries” with a law similar to the ATS. And he argued that liability “would discourage foreign investment in the United States by foreign firms concerned about triggering expansive ATS liability.” Katyal also claimed that the “international community” does not support holding corporations responsible for violations of international law. For support, he pointed out that the Nuremberg prosecutors declined to prosecute “the firm that supplied Zyklon B gas, which the Nazis used to kill millions.”

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Katyal’s arguments had a surprisingly chilly reception at the Supreme Court on Tuesday. Justice Clarence Thomas, no friend of the ATS, noted that while “there may not be an international norm” allowing corporate liability, the plaintiffs say there is an international norm against slavery. Katyal retorted: “I think that the norm that they’re asserting is not child slavery, but aiding and abetting child slavery.” And the plaintiffs “have not a single case” that holds there is an international norm against such conduct.

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Justice Elena Kagan later drilled down on Katyal’s theory that no corporation can ever be sued under the ATS. Kagan asked Katyal if a former child slave could sue an individual slaveholder under the law; Katyal said yes. Kagan then asked if a former child slave could sue 10 slaveholders under the law; Katyal said yes. Finally, Kagan asked, if those 10 slaveholders form a corporation, could a former child slave sue it? Katyal said no—a corporation of slaveholders would be immune, because there is no “specific norm” of liability “under international law.”

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“I guess what I’m asking is, like, what sense does this make?” Kagan responded. She then cited an amicus brief by Yale Law School professor Oona Hathaway demonstrating that Katyal is wrong: When combating the slave trade throughout the 19th century, countries frequently held trading companies liable under international law. Anti-slavery tribunals penalized these companies, which were analogues of modern corporations, for violating the law of nations. Katyal is asking the court to let corporations off the hook on the basis of revisionist history.

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Even Justice Samuel Alito, another ATS skeptic, told Katyal that “your arguments lead to results that are pretty hard to take.” The justice then gave Katyal a hypothetical to test the limits of his theory. If an American corporation hired foreign agents to kidnap children and hold them in bondage on a plantation in Africa, Alito asked, could those children sue the corporation in U.S. courts under the ATS? Katyal responded that, no, an American corporation that enslaves children overseas has no liability under the statute.

Despite this fierce questioning, Katyal probably still holds the winning hand. In other contexts, the conservative justices have been extremely hesitant to allow lawsuits involving international crimes that might implicate U.S. foreign policy. Paul Hoffman, lawyer for the plaintiffs, faced withering questions from the conservatives, who zeroed in on the Trafficking Victims Protection Act, a federal law that imposes criminal liability on American corporations complicit in child slavery. Thomas, along with Chief Justice John Roberts and Associate Justice Brett Kavanaugh, suggested that the TVPA represents America’s official response to the problem. Congress, they mused, would not want courts to give victims another way to hold corporations accountable.

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These justices also appeared uncertain that anyone, corporation or person, can be held liable for aiding and abetting a crime against humanity if they did not commit it themselves. And Alito strongly implied that he does not think the plaintiffs put forth enough persuasive evidence of Nestle’s or Cargill’s complicity to continue with the suit. The conservatives seemed to be looking for a way to avoid a sweeping decision—no corporate immunity under the ATS under any circumstances—while still throwing out this particular lawsuit. If so, they will surely find one, and Katyal can claim his victory.

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Given his pedigree and prominence as a center-left advocate throughout the Trump years, Katyal is almost certainly a candidate for a major position in the Biden administration. So it was somewhat surreal to hear him defending corporations accused of abetting child slavery. But such distasteful cases make up the bread and butter of a Big Law lawyer’s practice. Katyal served as acting solicitor general under Barack Obama, but he is also a partner at Hogan Lovells, where he routinely represents corporate clients. He has helped companies crush labor rights and consumer rights—while maintaining an active pro bono practice, often suing the Trump administration and defending death row inmates.

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The private law firms that aided Trump’s assault on democracy have been rightly pilloried by the left. But corporate attorneys like Katyal will present a challenge for Joe Biden. Many, including Katyal, have done genuinely noble work for free, while actively harming workers, consumers, and vulnerable communities for pay. Do these lawyers deserve a position in a progressive administration? Obama certainly thought so. Soon, Democrats will have to decide whether they will still invite such attorneys into the federal government. It is a shame that Big Law’s many victims—including, most likely, the six former child slaves behind Tuesday’s case—will not have a voice in that conversation.

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