Bench Memos

Law & the Courts

Splintered Ruling in Alien Tort Statute Case

The Alien Tort Statute gives federal courts jurisdiction to hear certain civil actions filed by aliens. Today’s ruling by the Court in Nestle v. Doe arises from a complaint filed by six individuals from Mali who allege that they were trafficked into Ivory Coast as child slaves to work on cocoa farms and that U.S.-based companies Nestle USA and Cargill are liable under the ATS for buying cocoa from those farms and for providing the farms with technical and financial resources.

The line-up in today’s ruling is very complicated, so I figured I’d break it down:

1. In Part II of Justice Thomas’s lead opinion joined by seven other justices (all but Justice Alito), the Court holds that the plaintiffs are improperly seeking extraterritorial application of the ATS. “Nearly all the conduct that [plaintiffs] say aided and abetted forced labor … occurred in Ivory Coast.” While they pleaded that every major operational decision was made in or approved in the United States, “allegations of general corporate activity—like decisionmaking—cannot alone establish domestic application of the ATS.”

2. Justice Thomas, joined by Justices Gorsuch and Kavanaugh, argues in Part III of his opinion that the federal courts should not create private rights of action under the ATS for violations of international law beyond the three historical torts that the Court identified in its 2004 ruling in Sosa v. Alvarez-Machain—namely, violation of safe conducts, infringement of the rights of ambassadors, and piracy. The creation of any other causes of action should be left to Congress. (Gorsuch, joined by Kavanaugh, elaborates on this point in a separate concurrence.)

3. Justice Sotomayor, joined by Justice Breyer and Justice Kagan, disagrees with Thomas’s position that the ATS should be limited to those three historical torts. (So the Court divides 3-3 on this question, with three justices not addressing it.)

4. Justice Alito, confining himself to the question whether domestic corporations are immune from liability under the ATS, would hold that they are not. He therefore dissents from the Court’s judgment. (In a separate opinion, Justice Gorsuch, joined by Alito, likewise argues that the ATS does not confer on corporations any special immunity.)

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