From SCOTUSblog: Argument analysis: Justices send mixed messages on corporate liability for allegedly aiding child slavery abroad

Avatar

Jaybird

Jaybird is Birdmojo on Xbox Live and Jaybirdmojo on Playstation's network. He's been playing consoles since the Atari 2600 and it was Zork that taught him how to touch-type. If you've got a song for Wednesday, a commercial for Saturday, a recommendation for Tuesday, an essay for Monday, or, heck, just a handful a questions, fire off an email to AskJaybird-at-gmail.com

Related Post Roulette

117 Responses

  1. Avatar Jaybird
    Ignored
    says:

    The transcript of the oral arguments from today is here.

    Oren Nimni has a great excerpt:

    Mark Joseph Stern has a great thread on the arguments here (read the whole thing):

    Report

    • Avatar Mike Schilling in reply to Jaybird
      Ignored
      says:

      Corporate people have freedom of speech and religion, but no criminal liability or civil liability for crimes committed, and also get favorable tax treatment compared to flesh-and-blood people. Not that there’s anything wrong with that.Report

    • Avatar Brandon Berg in reply to Jaybird
      Ignored
      says:

      In this particular case, that’s a terrible analogy for what actually happened. Nobody is saying that Nestle’s shareholders, who would be the ones paying for this, personally conspired to enslave the plaintiffs. The allegation is that Nestle purchased ingredients from a cacao plantation with some people at Nestle (not necessarily shareholders) aware that the plantation used slave labor.

      I don’t think anyone is claiming that it should, as a general rule, be possible to sue individuals for buying from vendors who use slave labor.

      That aside, when we’re talking about suing a corporation for wrongdoing by its employees, that ultimately ends up being paid for by current shareholders. Were they shareholders at the time the wrongdoing occurred? Even if they were, were they aware of the wrongdoing? At this point we’re getting very far removed from the individuals most responsible.

      As a rule, I’m against corporate and government liability because I’m for personal liability. If an employee of a corporation or government willfully commits a tort, why hold shareholders or taxpayers responsible? Let them sue the individual tortfeasors directly, and then go to shareholders or taxpayers for more money only if the plaintiff cannot be made whole thereby.Report

      • Avatar Jaybird in reply to Brandon Berg
        Ignored
        says:

        I don’t think anyone is claiming that it should, as a general rule, be possible to sue individuals for buying from vendors who use slave labor.

        Buying directly?

        Try me.Report

      • Avatar Chip Daniels in reply to Brandon Berg
        Ignored
        says:

        If an employee creates a profit for the company, why should the shareholders realize that profit?
        They certainly weren’t responsible for its creation.

        Each individual employee should reap the profit, loss, and risk, that accrues with their actions.

        Unless…the whole idea of a corporate entity is that the entity is to be considered as a whole, and the hired employees entitled to nothing more- or less- than their wages.
        The “share holders”…each “hold a share” in the risk, profit, and loss of the entity.Report

      • Avatar LeeEsq in reply to Brandon Berg
        Ignored
        says:

        Believing in individual liability in this case seems like a great way to ensure that evil people get away with evil acts by hiding behind the corporate or government form. The wrong doers will just claim they can’t be sued as individuals because they are were acting in an official capacity of some sort. Nothing will ever be done.Report

  2. Avatar Jaybird
    Ignored
    says:

    Notable point: Clarence Thomas asked a question.Report

  3. Avatar Slade the Leveller
    Ignored
    says:

    This smacks of treating the adversarial system as a game. How does someone with a conscience take this case?Report

    • Avatar Jaybird in reply to Slade the Leveller
      Ignored
      says:

      If you enjoy irony, you will enjoy this:

      Report

    • Avatar Oscar Gordon in reply to Slade the Leveller
      Ignored
      says:

      Because everyone deserves a vigorous defense, and even I can play devils advocate* if there are enough zeroes to the left of the decimal point.

      The real question is why these corporations aren’t just writing settlement checks.

      *Doesn’t mean I believe it, or even think it has a chance of winning.Report

      • Avatar CJColucci in reply to Oscar Gordon
        Ignored
        says:

        The real question is why these corporations aren’t just writing settlement checks.

        Because they have a very good chance of winning this particular suit and because paying settlement checks in all the cases likely to pop up if they do settle will be very, very expensive.Report

        • Avatar Oscar Gordon in reply to CJColucci
          Ignored
          says:

          Sure, but the question wasn’t about the legal argument, but the moral one (defending slavery). If a lawyer shouldn’t be defending the corporations legally because of the moral question, then the corporations shouldn’t be seeking to defend themselves legally either.Report

          • Avatar CJColucci in reply to Oscar Gordon
            Ignored
            says:

            1. Although it is perfectly fair to criticize lawyers for the interests they choose to defend, and perfectly fair for individual lawyers to chose not to provide a legal defense to conduct they (or others, or everyone) think immoral, any rule that lawyers, generally, shouldn’t provide a defense conduct that is immoral comes from one’s nether regions.
            2. Even if lawyers shouldn’t defend you if your conduct, even if legal, is immoral, by what reasoning can you be prevented from defending yourself? What is the point of something being lawful if you can’t assert its lawfulness when attacked?Report

            • Avatar Oscar Gordon in reply to CJColucci
              Ignored
              says:

              Hey, I’m with ya. Attacking lawyers for providing a legal defense for something seen as immoral is a great way to someday find yourself without a decent lawyer to defend you.Report

      • Avatar Mike Schilling in reply to Oscar Gordon
        Ignored
        says:

        The real question is why these corporations aren’t just writing settlement checks.

        Because of their duty to their stockholders to maximize profits. (Not joking.)Report

      • Avatar Slade the Leveller in reply to Oscar Gordon
        Ignored
        says:

        I can imagine Roberts reminding his fellow justices that they probably don’t want to be remembered in the same breath as Roger Taney.Report

  4. Avatar InMD
    Ignored
    says:

    The facts as alleged are obviously disturbing but I feel obligated to say this is a public policy issue more rightly laid at the feet of Congress than the Court, whatever they decide. Whether or not claims of this nature are actionable in US courts should not rest on interpretation of an over 200 year old statute and there is nothing preventing lawmakers from cleaning it up.Report

    • Avatar Jaybird in reply to InMD
      Ignored
      says:

      While I certainly agree that Congress could clean this up, I think that the Supreme Court can get away with saying that “a law that says you can’t sue an American company for using child labor is Unconstitutional.”

      Maybe they can split the baby and argue that the slaves can’t sue non-American companies for it.Report

      • Avatar InMD in reply to Jaybird
        Ignored
        says:

        I don’t believe there are any constitutional questions in the case. The statute the plaintiffs are suing under was passed in 1789. There is considerable debate over its purpose and scope.Report

        • Avatar Jaybird in reply to InMD
          Ignored
          says:

          But there does seem to be a constitutional question there. Do the slaves have the right to petition the government for redress of grievances?

          I can see the argument that they do and Congress trying to pass a law saying that they don’t is a violation of the 1st.

          (Though I can easily see the argument that a foreign slave can only sue American corporations in the US Court system and not foreign companies.)Report

          • Avatar CJColucci in reply to Jaybird
            Ignored
            says:

            No, there isn’t. This case is purely about the reach of the Alien Tort Claims Act of 1789. Federal courts are courts of limited jurisdiction and can hear only such cases as Congress decides they should hear. It wasn’t until 1875, for example, that you could bring a civil in federal court over violations of federal law (except for specific federal laws that specifically provided for suits, like the Alien Tort Claims Act itself) To prevent lawsuits about X, Congress doesn’t have to pass laws saying “you can’t sue about X” unless it had passed an earlier law that might be read to permit suits about X. That’s not what’s going on here. No one doubts that Congress had the constitutional power to enact the Alien Tort Claims Act in 1789, but no one asserts, or could plausibly assert, that Congress was under any obligation to enact it. The only reason these slaves can sue at all is that Congress opted to pass the Alien Tort Claims Act, and the only question in this case is whether that act allows suits against American corporations.* (The Court has already decided in an earlier case that they can’t sue foreign corporations, but even if it hadn’t, there are no non-American corporate defendants so no court would go out of its way to decide, in the abstract, whether slaves could sue foreign corporations. That’s just not the way things work.) The Constitution simply has nothing to do with this case. The right to petition the government for redress of grievances does not extend to non-citizens living abroad whose grievance is not with the United States government, and the petition clause does not, by its own force, create a right to sue in federal court in any event.

            *There is a question whether, even assuming the Alien Tort Claims Act permits suits against American corporations, the allegations in the complaint (which, for these purposes are assumed to be true) would amount to a violation of the Act in the first place. The Court might well punt the larger issue and rule against the plaintiffs on this ground.Report

            • Avatar Jaybird in reply to CJColucci
              Ignored
              says:

              “This case is purely about the reach of the Alien Tort Claims Act of 1789.”

              I know that you say this. I’ve heard other people say this too.

              I think it’s about more than that, though.Report

              • Avatar CJColucci in reply to Jaybird
                Ignored
                says:

                You’re entitled to your own opinion, but not to your own facts.Report

              • Avatar Jaybird in reply to CJColucci
                Ignored
                says:

                Sure. And if the Supreme Court finds for the slaves, I will be pleased that they did so.

                And if the Supreme Court finds for the Corporations, you can explain to people like me that the Supreme Court was just following the law.Report

              • Avatar CJColucci in reply to Jaybird
                Ignored
                says:

                It’s a genuinely interesting question whether the plaintiffs should win or lose. While I haven’t studied the case well enough to have a definite opinion, my tolerably well-informed guess is that the plaintiffs will lose. If they win, it will be a mild surprise, but either way — given the cross-ideological tenor of the questions — I believe that the Court will be following a sincere view of what the law requires rather than, as is too often the case, their policy druthers.
                But however it comes out, the one thing I am reasonably sure of is that the decision will turn on the reach of the Alien Tort Claims Act, or the factual sufficiency of the plaintiffs’ allegations, not on the Constitution.Report

              • Avatar DensityDuck in reply to CJColucci
                Ignored
                says:

                hey CJ remember that time when you said that Jaybird was engaging in weird sophistry to justify some kind of bizarrely counter-human reasoning

                cool huhReport

              • Avatar CJColucci in reply to DensityDuck
                Ignored
                says:

                Yes, I remember it well. And it was correct. If you have anything intelligent to say about the legal issues in this case, I’m eager to hear it. But I won’t hold my breath.Report

          • Avatar InMD in reply to Jaybird
            Ignored
            says:

            Right to petition for redress isn’t the same as jurisdiction of the federal courts and whether this statute creates this cause of action, which is really the issue. No one is stopping the plaintiffs from peacably assembling, demonstrating, whatever.Report

            • Avatar Jaybird in reply to InMD
              Ignored
              says:

              I think that the fact that the plaintiffs are slaves does sort of imply that they are being prevented from a handful of things, though.Report

              • Avatar InMD in reply to Jaybird
                Ignored
                says:

                This is where I think it’s worth looking at the language of the statute, again, passed in 1789, that says:

                The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

                Does that allow people harmed in foreign countries to come to America and sue multinational conglomerates based on their treatment in those countries? And if it does what are the larger implications? I’m not saying I think there’s an easy answer. If there was it would not be in front of the Supreme Court.

                On the redress thing I’m not aware of any law supporting the conclusion that the assembly clause of the 1st Amendment requires the courts to hear any particular claim. Maybe our resident con law scholars like Em or Burt can correct me but I would be very surprised to hear of it.Report

              • Avatar Jaybird in reply to InMD
                Ignored
                says:

                I’m not appealing to the assembly clause.

                I’m appealing to the redress clause.Report

              • Avatar CJColucci in reply to Jaybird
                Ignored
                says:

                Could you possibly understand why the well-paid, highly-qualified lawyers for the plaintiffs might have decided not to make that argument? Really, engage your sympathies and imagination and see if, maybe, you can’t come to see, or at least understand, their point of view.Report

              • Avatar Jaybird in reply to CJColucci
                Ignored
                says:

                Sure, there are plenty of reasons that they would argue that the slaves ought to be able to sue the corporations that oversaw them.

                And there are plenty of reasons that they’re using a law that has been used to allow people to sue US corporations in the past.

                But the lawyer is standing in front of Supreme Court Justices saying, and let me copy and paste this:

                Q: Could you sue a slave holder under ATS?
                A: yes
                Q: Could you sue 10 slave holders?
                A: Yes
                Q: So why does it matter if those ten form a corp.
                A: Umm… norms don’t allow corporate liability…

                and

                Q: So could you sue on torture?
                A: Yes
                Q: But not if it was a corporation?
                A: Yes

                And that strikes me as a bizarre argument and one that is, yes, Unconstitutional.

                Even if the lawyers know that they have to go in there and argue uphill, given precedent.Report

              • Avatar CJColucci in reply to Jaybird
                Ignored
                says:

                You misread my question, which was if you could understand why highly-qualified lawyers for the slaves might choose not to make the argument you think they should make. My own guess is because they know better, and, after all, this is my line of work. What’s your guess?Report

              • Avatar Jaybird in reply to CJColucci
                Ignored
                says:

                Well, I admit to a great deal of prejudice.

                I think that there are a dozen (if not more) reasons that slaves should be allowed to sue the corporations that oversaw them.

                I guess I’ll defer to the lawyers arguing in front of the Supreme Court that they picked the best of the dozen reasons.

                But that doesn’t mean that I still don’t see the other reasons as also being good reasons that slaves should be allowed to sue the corporations that oversaw them.Report

              • Avatar CJColucci in reply to Jaybird
                Ignored
                says:

                Are any of these reasons that slaves “should” be able to sue the corporations that oversaw them actual legal reasons that would support a suit under the only law that arguably permits it, or, instead, moral reasons of the “there oughta be a law” variety? The former might have some purchase in the Supreme Court; the latter, not so much. The actual working professionals who care about winning know the difference.Report

              • Avatar Jaybird in reply to CJColucci
                Ignored
                says:

                Well, one of the reasons is that there shouldn’t be a law that prohibits the right to petition the Government for a redress of grievances.

                I don’t know about whether there is a law that specifically *ALLOWS* slaves to sue corporations that oversee them. (Apparently, though, even Neal Katyal agrees that you could sue a person for overseeing slaves.)

                And, from there, I just jump to “yeah, well, it’s not a particularly far jump to ‘corporations have personhood'” and get to the slaves can sue a corporation for the same reasons that they’d be able to sue a person and any law saying they can’t is a violation of the First Amendment.Report

              • Avatar CJColucci in reply to Jaybird
                Ignored
                says:

                You’re just repeating yourself, Jaybird. And you’re repeating things that aren’t even involved in the case, like whether there is a law that prohibits slaves from suing the corporations that oversee them. If you’ve been paying attention, what the slaves need is a law that allows it. They say that the Alien Tort Claims Act allows it and the corporations disagree. They do not claim that some law other than the Alien Tort Claims Act allows it. They do not claim that the First Amendment permits it. And they are right not to do so, because their lawyers are serious professionals who know what is and isn’t a plausible legal argument. Do you really think you have figured out a potentially winning argument that has eluded them? Nothing you’ve written suggests that you even understand the issue, let alone have an answer.
                You are simply out of your depth here.Report

              • Avatar Jaybird in reply to CJColucci
                Ignored
                says:

                “And you’re repeating things that aren’t even involved in the case”

                Yes. This is true.

                I believe that the Supreme Court should find for the child slaves for multiple reasons. Some of the reasons are not involved with the case.

                I don’t see this as a particularly interesting criticism of my stance, though.

                If you’ve been paying attention, what the slaves need is a law that allows it.

                Yeah.

                I’m willing to agree that there is a law that allows it.

                They do not claim that the First Amendment permits it.

                For someone going over my arguments with a fine-tooth comb, you should see that I’m not saying that the First Amendment permits it.

                It doesn’t.

                What the First Amendment does is say that you can’t make a law prohibiting it.

                Do you really think you have figured out a potentially winning argument that has eluded them?

                Well, I’m in this weird place where I see the whole “oversaw child slavery” thing as being sort of a “win argument” button against the corporations.

                You are simply out of your depth here.

                I suppose.

                The worst part is that I am not ashamed of being out of my depth on this issue.

                It seems obvious to me that the slaves ought to be able to sue the corporations.

                Would the slaves be able to sue people?
                Yes.
                Are Corporations people, according to the law?
                Yes.

                So, from there, we just have to ask “Should the slaves be able to sue the corporations the way that they’d be able to sue people?”

                And while I appreciate that I am being childlike and naïve in my belief that the child slaves should be able to sue the corporations and that I am out of my depth in asserting that it’s fairly straightforward that they should be able to do so, the counter-arguments that I’m seeing are of the form:

                “These people are lawyers. High-powered ones. Do you really think that they haven’t thought about this?”

                And whether I think about whether they’ve thought about it is an interesting question, I guess, it’s not really an argument against the points that I’ve made.

                It’s just an appeal to the skills of the lawyers doing this already.

                Which, I’m sure, are vast.Report

              • Avatar CJColucci in reply to Jaybird
                Ignored
                says:

                You have made a number of elementary legal mistakes, most of which have been pointed out to you already. You have tilted against a non-existent law that you think, if enacted, would violate the First Amendment, apparently on the ground that if you can sue a person for slavery you ought to be able to sue a corporation for it. That isn’t even a First Amendment argument. If it is anything, it is an Equal Protection argument. You still switch back and forth between whether slaves “should” be able to sue, in some moral sense — for what it’s worth, I agree with you — and the issue before the Supreme Court, whether you “can” sue — if you even understand the difference.
                As it happens, I’m busy today with a couple of lunatic pro se plaintiffs presenting frivolous legal claims. I get paid to deal with them, so as much fun as this has been, I’ll have to turn to my day job. Thanks for the warm-up.Report

              • Avatar Jaybird in reply to CJColucci
                Ignored
                says:

                You originally asked me for reasons.

                If you want me to put together a legal argument, here goes:

                Q: Would the slaves be able to sue people, according to the law?
                A: Yes.
                Q: Are Corporations people, according to the law?
                A: Yes.

                Therefore: The slaves are able to sue corporations according to the law.

                Q.E.D.

                I think that their ability to petition the government for redress of grievances should not be hindered by the USG.

                I’ve scanned above for where this elementary legal mistake has been explained to me but I’m just seeing stuff like “you’re out of your depth” and “these lawyers are really good and they’re using their arguments and not your arguments” and whatnot.

                Not stuff like “well, you have to understand, corporate personhood doesn’t mean that child slaves can sue corporations the way they sue people… that’s already been established in cases X, Y, and Zed.”

                It’s stuff that talks about me personally.

                Which, lemme tell ya, does a better job of confirming my priors than dissuading me from them.

                For what it’s worth, I think that it’s very possible that the court will find for the corporation.

                Here’s where you and I will disagree, I think:

                I think that the Court will be wrong, both legally and morally, to do so. And, in doing so, it will indict the legal system at the same time it frees the corporations from liability.Report

              • Avatar CJColucci in reply to Jaybird
                Ignored
                says:

                Everyone thinks he can manage a baseball team better than baseball managers and make legal arguments better than lawyers. You still haven’t put up something that constitutes a legal argument. Under the Alien Tort Claims Act, foreign victims can sue persons for slavery. It has already been decided that foreign victims can’t sue foreign corporations for violations of the Act. Nobody has suggested that that violates the Equal Protection clause, which at least has some surface plausibility, or the First Amendment. The First Amendment’s petition clause does not require that people be able to sue in federal court for redress of grievances against private malefactors. Maybe foreign victims can sue domestic corporations under the Act and maybe they can’t, but the question of whether they can is strictly a matter of the meaning of the Alien Tort Claims Act. There is no “should” about it, and no legal source other than the Alien Tort Claims Act itself for their right to do so.Report

              • Avatar Jaybird in reply to CJColucci
                Ignored
                says:

                It has already been decided that foreign victims can’t sue foreign corporations for violations of the Act.

                I believe I’ve said above that I understand why the Supreme Court might argue that it isn’t the right place to argue whether foreign child slaves can sue foreign companies.

                I’m not arguing that they can.

                My argument is that foreign child slaves can sue the US companies that oversaw their slavery.

                The way that they could sue individuals.

                The First Amendment’s petition clause does not require that people be able to sue in federal court for redress of grievances against private malefactors.

                You’re repeating yourself so I will repeat myself.

                “What the First Amendment does is say that you can’t make a law prohibiting it.”

                That’s one of those things that I came out and said explicitly. And you’re still arguing against me as if I’m arguing that the first amendment forces something.

                But, to go back to what I said earlier:

                I think that there are a *LOT* of reasons that the child slaves should be able to sue the corporations that oversaw them.

                It’s true that not all of these reasons are legal reasons.

                I don’t see this as a weakness of my position.Report

              • Avatar CJColucci in reply to Jaybird
                Ignored
                says:

                It’s true that not all of these reasons are legal reasons.

                So now we’re haggling about the price? I can live with that.Report

              • Avatar Jaybird in reply to CJColucci
                Ignored
                says:

                I’m not haggling, CJ.

                I’m the one saying that “the child slaves should be allowed to sue the corporations that oversaw them” and being unmoving on that point.

                It’s other people who are explaining to me that, no, I have to understand things and I just don’t understand how the world works.Report

              • Avatar greginak in reply to Jaybird
                Ignored
                says:

                Where is anybody arguing for child slavery??? People seem to be saying that supreme cases are often on a point of law and less about the facts or top line issue.

                Heck it should be against US law to use child slaves. Why make former slaves go to court after they have been enslaved.Report

              • Avatar Jaybird in reply to greginak
                Ignored
                says:

                Greg, I am not saying that other people are arguing for child slavery.

                We’re arguing over whether child slaves can sue the US corporations that oversaw their slavery.

                Do you think that foreign child slaves ought to be able to sue the US corporations that oversaw their slavery?

                Not “do you think that child slavery is bad?”

                Not “if the child slaves had their day in court, do you think they should win?”

                But “should child slaves be able to sue the US companies that oversaw their slavery?”Report

              • Avatar Oscar Gordon in reply to Jaybird
                Ignored
                says:

                CJs point is that the law is X, you want it to be Y. SCOTUS should not be in the business of making X into Y. That falls to Congress.Report

              • Avatar Jaybird in reply to Oscar Gordon
                Ignored
                says:

                I get his point. I understand that the law is X and I want it to be Y.

                But I also think the following:

                P: The child slaves would be able to sue a person
                Q: Corporation personhood extends to sue-ability
                R: The child slaves should be able to sue a Corporation

                P is true. (The lawyer for the corporation admitted as much.)
                Q is true. (This has been established multiple times.)

                If P is True and If Q is True
                Then R is True

                And P is True
                And Q is True

                (And that’s without getting into whether SCOTUS is in the business of making X into Y when making X into Y is what it feels like doing that day.)Report

              • Avatar greginak in reply to Jaybird
                Ignored
                says:

                There is far less disagreement here then anything. Slavery is bad. F the companies. Exactly how we get to laws enforcing that are the issue.

                If former child slaves have to sue then the law has already failed. They were enslaved who will have to spend years fighting a giant corp who will string things out.Report

              • Avatar Jaybird in reply to greginak
                Ignored
                says:

                If former child slaves have to sue then the law has already failed.

                I agree that the law has already failed.

                But I still think that the child slaves should be able to sue the corporations that oversaw their slavery.Report

              • Avatar greginak in reply to Jaybird
                Ignored
                says:

                Yeah. So that sounds like a barrel full of agreement.Report

              • Avatar Jaybird in reply to greginak
                Ignored
                says:

                I’m sorry Greg. I still don’t understand.

                Do you think that the child slaves should be able to sue the US Corporations that oversaw their slavery?Report

              • Avatar CJColucci in reply to Jaybird
                Ignored
                says:

                We’re haggling about just how much of what you’re saying constitutes a legal reason. You’ve said not all of them are, so we’re haggling about how many. I haven’t seen one, but that’s just haggling about the price.
                And no, you don’t understand things and don’t know how the world — or this portion of it — works. We’re getting into Dunning-Kreuger territory here.Report

              • Avatar Jaybird in reply to CJColucci
                Ignored
                says:

                We’re haggling about just how much of what you’re saying constitutes a legal reason

                Well, what I’m saying now is mostly the whole issue of (lemme copy and paste this):

                P: The child slaves would be able to sue a person
                Q: Corporation personhood extends to sue-ability
                R: The child slaves should be able to sue a Corporation

                P is true. (The lawyer for the corporation admitted as much.)
                Q is true. (This has been established multiple times.)

                If P is True and If Q is True
                Then R is True

                And P is True
                And Q is True

                I understand that the slaves’ lawyers are really good at this, though. Also, that I am naïve.Report

              • Avatar CJColucci in reply to Jaybird
                Ignored
                says:

                The great thing about being a lawyer is that you don’t have to convince your adversary. There is a judge or a jury with no skin in the game who can decide who’s right and who’s wrong. I’m satisfied with the results so far, and I rest my case.Report

              • Avatar Jaybird in reply to CJColucci
                Ignored
                says:

                Yeah, I’m in a different place.

                I’ll only be satisfied with the results if they end up saying that the child slaves can sue the US companies that oversaw their slavery.

                And I’ll see anything less than that as unsatisfactory.Report

              • Avatar Michael Cain in reply to CJColucci
                Ignored
                says:

                Even better, in the days when I did real-time programming, it was great that success was judged on whether the code got the correct answer(s) within the allotted time budget, or not.

                The exciting part was when you had to tell management, “This processor, this much memory, and I can find or invent algorithms that will do it.”Report

              • Avatar Oscar Gordon in reply to Jaybird
                Ignored
                says:

                Q is not a true statement as it stands. Or, perhaps I should say that Q is too general of a statement to be entirely true.

                That is the problem.

                We may think of a Corporation having personhood, but not every part of the law has caught up to that idea yet. If the law as written is unambiguous, then the court doesn’t have a lot of wiggle room, and it falls to congress to fix this.Report

              • Avatar Jaybird in reply to Oscar Gordon
                Ignored
                says:

                I think that, when it comes to sue-ability, corporation personhood has been demonstrated to exist.

                When it comes to foreigners suing foreign countries in American Courts, it’s been established that the Supreme Court isn’t the right place to do that. (Kiobel v. Royal Dutch Petroleum, I guess.)

                But if we’re talking about suing American Corporations in American Courts, they’ve been demonstrated to be sue-able.

                And the monstrousness of the behaviors describd indicate to me that, if the child slaves had their day in court, they would win (assuming some semblance of truth to their claims, of course).

                And so the question is then “should they have it?”

                If the response comes “well, the law isn’t clear” well… does that mean that, presumptively, they shouldn’t be able to petition the government for redress of their grievances against the American corporations who oversaw their slavery?

                It seems to me that, presumptively, they ought.

                And instead of having it explained to me why they shouldn’t, I’m instead being told that I’m out of my depth.Report

              • Avatar Oscar Gordon in reply to Jaybird
                Ignored
                says:

                First off, they ARE NOT petitioning the government for a redress of grievances. The government has not done anything here, so there is no grievance against the government to redress.

                What they are asking for is clearance to sue a US company in US courts for actions that took place outside of US Jurisdiction.

                Let’s be VERY clear on what is going on here. There is ZERO redress of grievances at play. You do not seek a redress of grievances against a private party, you seek to file suit.

                None, notta, zilch, the government has not done anything wrong.

                The entirety of the question is does US Law allow a non-citizen to bring suit in US courts for acts committed outside the US. My understanding is that is does allow for suits against US persons, but that the law itself does not specifically mention corporations (CJ, do I have that right?), and in 1789, corporations were rather different things.Report

              • Avatar InMD in reply to Oscar Gordon
                Ignored
                says:

                I quoted it above, the statute in question is this:

                The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

                As CJ said the federal courts are courts of limited jurisdiction. That means you can’t sue for something in them unless there is a law that says you can. The question is whether the above law says these plaintiffs can sue these defendants for the alleged torts.

                Congress could easily clear it up with a statute if they wanted. The real interesting thing would be how Congress reacts to a holding allowing the suit to move forward. It’s entirely possible they would enact a law that limits these kinds of lawsuits. But right now all we have to answer the question is an interpretation of this ancient law.Report

              • Avatar Jaybird in reply to Oscar Gordon
                Ignored
                says:

                I agree, they are not! They are NOT!

                What they are doing is petitioning the government for the ability to petition the government! (“Petition the government for redress of grievances” doesn’t mean only “go to the government to complain about the government”, it also covers stuff like “the right to present requests to the government without punishment or reprisal”.)

                They want to go to US courts and sue US corporations! And the question is whether or not the law allows them to do so.

                And we know that they could sue persons.
                And we know that corporate personhood exists.

                And the argument is over whether or not the US courts should have to allow the child slaves to bring suit.

                And as someone who believes that the children have the right to bring suit against the US corporation that oversaw their slavery, I keep finding it strange that people are arguing against arguments that I’m not making but different ones.Report

              • Avatar Oscar Gordon in reply to Jaybird
                Ignored
                says:

                You are arguing a moral position instead of a legal question.

                The moral position is not in dispute, the legal question is. And the legal boundaries are corporate personhood ARE NOT the same as the legal boundaries of human personhood. Maybe they should be, maybe the court has kinda said they are via Citizens United and such, but TTBOMK, the courts have never clearly and specifically said (corporations == persons).

                This is like arguing that the app you are using should have a specific, popular feature that other similar apps have. Of course it should have that feature! But until that feature is in the code, it doesn’t.Report

              • Avatar Jaybird in reply to Oscar Gordon
                Ignored
                says:

                And there are now people standing in front of the Supreme Court saying “hey, to put that feature in, all you have to do is press this button”.

                I am arguing that they should press the button.

                Why? Because of established corporate personhood.

                Now, if you’re saying “look, there are a lot of reasons that the Supreme Court could appeal to in order to not press the button”, I can easily see that that is true.

                “There isn’t a precedent for this!”, is one.

                But they’re the Supreme Court. One of the things the Supreme Court regularly gets away with is creation of precedent.

                But there are other reasons, aren’t there? Just like there are reasons that I have that aren’t legal reasons that I support the child slaves in this situation, there are non-legal reasons that a lot of people might hope that the corporations win.

                Heck, if we allow child slaves to sue American corporations, then that opens the door for all sorts of lawsuits.

                EVEN FRIVOLOUS ONES.

                And people who are generally disposed against frivolous lawsuits could easily see “If we do X, then it’ll allow frivolous lawsuits… do you think we should do X?” as a reason to argue “Nah, we shouldn’t do X” even without knowing what X is.

                Chocolate enjoyers, will see the price of chocolate go up. Stockholders will see their share prices go down.

                And, yes, American Corporations will be at a competitive disadvantage.

                So I understand all of that.

                As for the question of whether the child slaves ought to have access to US courts to sue the US corporations that oversaw them? I am 100% down with the argument that says “we don’t know, as this hasn’t been hammered out yet”.

                Well, they’re hammering it out now.

                And they should find for the child slaves.Report

              • Avatar Oscar Gordon in reply to Jaybird
                Ignored
                says:

                My understanding of all this is that they don’t actually have a button to press. The plaintiffs are claiming they do, but that doesn’t mean said button actually exists.

                And SCOTUS is not known for taking flights of fancy to imagine and press buttons that might exist.Report

              • Avatar Jaybird in reply to Oscar Gordon
                Ignored
                says:

                And so the question is whether “Corporate Personhood” comes with detriments as well as benefits.

                Personally, I think it should come with detriments too.

                I hope that the Supreme Court takes a flight of fancy and finds that if US Corporations oversee child slavery, that the child slaves can go on to sue the US Corporations the same way that they’d be able to sue a person.

                Something that we agree would be able to happen.Report

              • Avatar CJColucci in reply to Oscar Gordon
                Ignored
                says:

                The Supreme Court might well find for the plaintiffs. That’s not how I’m betting, largely because “punt” is an appealing option for the Court, but they might. There are reasonable arguments for why they might win, just not the ones Jaybird has been pushing here. The plaintiffs’ able advocates are making the type of actual legal arguments that might win. And maybe they will win. If they do win, the “real” reason may be that child slavery offends them — as it does almost everyone — and the Alien Tort Claims Act is sufficiently unclear that they can say, in effect, that nothing someone can point to and embarrass us with actually say they can’t sue, so what the hell. But they have to write something that professionals recognize as law to justify “what the hell,” and if they do it will look a lot like the real legal arguments of the plaintiffs’ lawyers, remarkably narrow and technical and dull to lay people.Report

              • Avatar Jaybird in reply to CJColucci
                Ignored
                says:

                Out of curiosity, when Kagan and Barrett were asking about the distinctions between being able to sue persons but not corporations, were those dumb questions that were beside the point?

                (I mean, they are both women who are famously emotional about shit like children. It’d make sense that they’d ask emotion-based questions.)Report

              • Avatar CJColucci in reply to Jaybird
                Ignored
                says:

                Not at all, just not for the reasons you seem to think.Report

              • Avatar Marchmaine in reply to Jaybird
                Ignored
                says:

                This is slightly oblique… but I feel obliged to point out in a context such as this how Adrian Vermeule (of Catholic Integralist fame) would argue precisely as you reason thus:

                “And there are now people standing in front of the Supreme Court saying “hey, to put that feature in, all you have to do is press this button”.

                I am arguing that they should press the button.”

                The anti-Originalist position of the Vermeule faction is the converse of the anti-Originalist position of the liberal faction on the Court… you always push the button in favor of the Common Good.

                Preempting the, if you didn’t like Originalist Conservative jurists, just wait until…Report

              • Avatar Jaybird in reply to Marchmaine
                Ignored
                says:

                If all “originalism” means is “pro-corporate”, then I find myself ashamed of arguing for originalism in the past. For corporate personhood as well, for that matter.

                I thought that originalism (and corporate personhood) would result in a better world. One in which such things as child slavery would be disincented by the courts, even in the face of there not being a precedent for letting non-citizens sue corporations the way that they’d be able to sue a person.Report

              • Avatar Marchmaine in reply to Jaybird
                Ignored
                says:

                No, I don’t think that’s the point of originalism, nor Vermuele’s critique of it.

                I’m just inserting it here where he’d likely agree that you “push the button” because the next time it comes up it will be over an issue where folks here don’t think there’s an obvious common good being preserved.

                Ultimately it’s asking the court to rule not adjudicate… and I think that’s increasingly a bi-partisan consensus. We *want* that. Until we get it.Report

              • Avatar InMD in reply to Marchmaine
                Ignored
                says:

                It’s to the court’s credit that they tend to resist that urge. This is turning into one of those things where we’re throwing our hands up by a hypothetical failure of the least appropriate branch of the federal government to address the issue as though there aren’t any alternatives. And all before they’ve even made their decision which may well still come to the desired outcome using established legal principles and reasoning.Report

              • Avatar Jaybird in reply to InMD
                Ignored
                says:

                We have a situation where no one disagrees that there are grounds where the court might find for the child slaves.

                Not that these grounds are unassailable, of course. Not that these grounds are the only possible outcome.

                Just that it’s possible for the court to read the laws as written and look at various precedents and say “yes, it looks like this is a case where the kids can sue”.

                I don’t know why the whole “well, they could and they could do it in a way that they’d be justified in doing so” doesn’t get us to the 50 yard line here.

                At the very least, I’d like to see arguments for why the court should *NOT* find for the child slaves.

                So far what I have seen is:

                If they do this for this particularly egregious example, they’d have to allow less egregious examples through.
                There is no precedent for allowing this.
                The law is unclear.
                It’s easier to just punt and the Roberts Court likes kickin’.

                Did I miss any?

                Because I’m not seeing why the moral issues don’t hold sway after we’ve established that, yes, the court has grounds to find for the child slaves.Report

              • Avatar InMD in reply to Jaybird
                Ignored
                says:

                Well SCOTUS even granting cert is meaningful. That doesn’t tend to happen in cases where there’s no chance.

                Also you missed venue.
                There’s a legitimate question of whether a US court is the right place to adjudicate something that happened in another country.

                But beyond that and getting the law right (a concern that should not be diminished) there is always a concern about staying within constitutional bounds. The court interprets the law, it doesn’t make it. All the institution has is its credibility and every time it goes out on a limb it takes a big risk. Humility is the MO of the Roberts court for a reason. And in fairness the decision of whether to open the proverbial floodgates of foreign plaintiffs on the federal judiciary is one that should be made by Congress.

                But look if you’re asking how I would vote? Assuming sound arguments on the plaintiffs’ side I’d err on letting it move forward. If Congress disagreed then they could shut off the valve and own the consequences of doing so. Of course I have no vote and am sure there is some smarter lawyer out there than me that could make a good case as to why I’ve got it all wrong. That lawyer’s existence doesn’t offend me. It comes with the territory.Report

              • Avatar Jaybird in reply to InMD
                Ignored
                says:

                There’s a legitimate question of whether a US court is the right place to adjudicate something that happened in another country.

                I’d agree, but we already established that the children could sue a *PERSON* if it happened in the other country.

                Kagan and Barrett both asked that question and the answer came back affirmatively.

                So a US court can be the right place to adjudicate something that happened in another country if it involved a person-to-person incident.

                And, apparently, foreign corporations can sue US corporations for stuff that US corporations did in other countries.

                And if people can sue people and corporations can sue corporations…

                I’m guessing that the only question remaining is whether people can sue corporations.

                Which means that the problem with the child slaves is that they weren’t incorporated.Report

              • Avatar InMD in reply to Jaybird
                Ignored
                says:

                Same difference. And to CJ’s point if there was authority I suspect they’d have made the argument.Report

              • Avatar CJColucci in reply to InMD
                Ignored
                says:

                For anyone who wants to see in detail what the arguments pro and con are, see http://www.scotusblog.com/case-files/cases/nestle-usa-inc-v-john-doe-i/ The briefs of the parties, as well as the many amicus briefs, may be found there.
                They are likely to give you a headache, as they did to me, but they are fine examples of actual legal argument.Report

    • Avatar CJColucci in reply to Saul Degraw
      Ignored
      says:

      Yes, a very good article. It lays things out very clearly and in a way that laypeople should be able to understand.Report

    • Avatar Jaybird in reply to Saul Degraw
      Ignored
      says:

      My favorite excerpt:

      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.”

      Report

  5. Avatar Jaybird
    Ignored
    says:

    Today’s Idle Thought:

    Report

  6. Avatar Chip Daniels
    Ignored
    says:

    What this sort of case reveals is just how much of our wealth is based on slave labor.

    We hear all the time about how “free trade” has enriched the world and lifted people out of poverty. Which is true!

    But part of the reason is that much of the wealth produced is cheap only because of stolen labor.

    Labor that is taken by force, and not paid for.

    The fact that major corporations are willing to publicly defend this shows how deep this goes. How cheap would our socks and tee shirts and computers and flat screen tvs be, if the labor was freely exchanged for fair market rates?Report

    • Avatar LeeEsq in reply to Chip Daniels
      Ignored
      says:

      People like novelty and material goods but for most of human history these goods were out of reach for many people because of distance and other stuff. Sugar, spices, and fine fabrics were things that only the wealthy in Western societies could afford. Then the started to become a lot cheaper from the 16th century onward starting with sugar becuase of plantation slavery in the New World. Even now a lot of life’s simple pleasures or necessities are created through a large amount of human exploitation and misery.

      Maybe the austere leftists are right and fun really is the enemy of justice. When you have your cup or two of coffee with sugar in the morning than some other human is being exploited across the world on a plantation, living in grinding poverty. Either the price of the goods needs to be higher and we in the wealthy parts enjoy them less or we do without globally.Report

      • Avatar InMD in reply to LeeEsq
        Ignored
        says:

        This gets into one of those Yglesias analysis where we try to decide between competing goods and evils that seem hopelessly intertwined. On the one hand globalization and markets have resulted in horrific abuses and exploitation. On the other they’ve created remarkable gains everywhere (including in the developing world) and pulled millions, maybe billions out of poverty. And on the metaphorical third hand they’ve also driven political instability even as we benefit from widespread cheap toys and convenient goods no one could have imagined a mere two generations ago.

        I don’t buy the easy morality tale. There are winners and losers all over the place. But nor do I believe we should just turn a blind eye to this kind of abuse carried out for profit by American companies. It’s a hard line to walk.Report

        • Avatar LeeEsq in reply to InMD
          Ignored
          says:

          There isn’t an easy answer to any of this. We also know that people like their creature comforts and aren’t going to do without. This includes the stuff that drove the global slave trade in the first place, sugar, cotton, coffee, and other tropical crops, and our new toys and gadgets like Iphones.Report

      • Avatar Carl Schwent in reply to LeeEsq
        Ignored
        says:

        In Tamarian speak: “The Ones Who Walk Away from Omelas”.Report

      • Avatar veronica d in reply to LeeEsq
        Ignored
        says:

        That settles it. We’re all going to the Bad Place.Report

    • Avatar Swami in reply to Chip Daniels
      Ignored
      says:

      So, Chip, what is the answer?

      How much of our wealth IS based on slave labor?

      If I was to take a wild guess, I would say it rounds to about 0.00%.

      I certainly would also emphasize that stolen labor is not free trade by definition.

      Corporations should be prohibited in the US of knowingly dealing with slave labor. Doing so would have zero impact on prices or supply, and would be morally correct (and I would of course support the prohibition even if it did affect prices).Report

      • Avatar Chip Daniels in reply to Swami
        Ignored
        says:

        We agree on your last paragraph.

        It is interesting isn’t it, that some of our largest corporations think that cutting off slave labor will have a serious impact on their operations.

        So they apparently think it is more than 0.00%.Report

        • Avatar Oscar Gordon in reply to Chip Daniels
          Ignored
          says:

          Do they? Or do they simply think it will impact some small percentage of costs that would be the difference between getting a bonus this year?Report

          • Avatar Chip Daniels in reply to Oscar Gordon
            Ignored
            says:

            How much have they spent on this court case, taking it all the way to the Supreme Court?
            Haven’t they also lobbied Congress on the issue?

            They believe that it is at least worth that much.Report

            • Avatar Oscar Gordon in reply to Chip Daniels
              Ignored
              says:

              Again, conflating things.

              Manager/Executive looks at the numbers for using slave labor versus paid labor, and decides his bonus would be helped by using slave labor in a place where it’s not ‘illegal’ as such.

              Corporation, once it comes to light, and sees the potential costs for losing those lawsuits, and decides that the cost of losing would seriously impact the bottom line.

              Now, if we someday find out that corporate legal had looked at the potential for using slave labor over paid and signed off on it as ‘not a significant risk’, then your position holds water. The company as a whole decided slave labor was a significant cost savings.

              But if legal/the board/the CEO found out about it after the fact and are now just a$$ covering, that’s different.

              So, we need to ask:

              A) When did this take place?
              B) When did it stop?
              C) Why did it stop (if it stopped)?

              Personally, I think the lawsuit that could result from this would be very interesting in that we might get those questions answered (unless we already have some of those answers?).Report

  7. Avatar Slade the Leveller
    Ignored
    says:

    Chevron filed an amicus brief in support of the corporations. Here’s a snippet:

    Chevron unequivocally condemns human rights abuses, and is committed to conducting its global commercial affairs in a lawful and responsible manner that is respectful of all persons wherever it does business.

    But…

    The but is very telling. Kind of like those who supported the police’s right crack a few skulls when necessary, while at the same time saying, “Well, sure, of course what happened to George Floyd was wrong.”Report

  8. Avatar Jaybird
    Ignored
    says:

    Don Zeko has an interesting thread here:

    Report

    • Avatar CJColucci in reply to Jaybird
      Ignored
      says:

      Ronald Sullivan would like a word.Report

      • Avatar Jaybird in reply to CJColucci
        Ignored
        says:

        I wasn’t a fan of having him removed from the Dean position. Then I found out more information about him.

        It wasn’t about Weinstein, I found out.

        Read the whole thread. It had a lot of information that I found clarifying.Report

        • Avatar CJColucci in reply to Jaybird
          Ignored
          says:

          This was well-known at the time for those who cared about it. But it was too convenient an story of cancel culture for people to resist. That said, lawyering is a contact sport, and lawyers take crap all the time for defending someone or something that someone doesn’t like. It has even happened to me, despite my considerable personal charm and self-deprecating humor. The first line of defense is a thick skin. If things get beyond taking crap, the organized bar is pretty good at helping out.Report

    • Avatar LeeEsq in reply to Jaybird
      Ignored
      says:

      Being a lawyer requires a lot of cognitive dissonance, especially in an adversarial system like those in Anglophone countries. We get around this by saying lawyers are allowed to believe their clients are telling them the truth and that even the most heinous client is entitled to a good defense. Its just that you have a lot of heinous clients that can pay really big bills.Report

      • Avatar InMD in reply to LeeEsq
        Ignored
        says:

        Maybe I’m just a reptile but I think people who have these kinds of hang-ups have no business becoming lawyers. Our job is to represent clients within the bounds of the law and professional ethics. Good guys and bad guys (to say nothing of outcome based outrage) are luxuries for people who can’t handle the nuances of the role or the subject matter.

        Frankly this kind of magical thinking where lawyers own the misdeeds or odious interests of their clients is a gift to the policy makers who actually have control over what the law is. There are straightforward ways to attack the problem of American companies using slave labor overseas. Katyal’s personal opinions have nothing to do with them.Report

        • Avatar CJColucci in reply to InMD
          Ignored
          says:

          Juries often believe that lawyers know the truth about their clients’ claims and would be astounded to learn that, quite often, they do not. This creates a problem for the lawyer, because the jury will be looking for the lawyer who is telling them the truth, though it is very likely that neither lawyer knows the truth. The lawyer, therefore, must project credibility in a state of ignorance. That is best done by framing your case in a way that you, yourself, can believe, regardless of what the ultimate truth is. In a criminal case, you may not know whether your client did it, or you may even know that he did, but you may still credibly argue that the prosecution’s evidence is inadequate, which it may be, or that an adverse witness who happens, this time, to be telling the truth, has been convicted of perjury three times, so is generally untrustworthy, which he is. But you don’t make arguments that will discredit you and, therefore, your client. Ethics is more a question of how you represent someone rather than whom you represent.
          Max Steuer, a legendary trial lawyer of the early 20th century, represented a lot of sleazy people. (He is best known now for defending the owners of the Triangle Shirtwaist Factory.) But he gave a New Yorker interview (he did not know then that he had only a few years to live and fully expected to be trying cases for a long time) when he was asked the secrets of his success. He did not talk about his rigorous preparation, his mastery of the record, his charm, his tenacity, or his many other lawyerly skills. He knew potential jurors would read the interview, so he told the reporter that he had been lucky enough to become successful relatively early and that very success brought him far more case than he could handle. He won so often, he said, because, with all these cases to choose from, he could afford to select only those where he was confident of the justice of the cause. From there, it was easy. Now that’s advocacy, even before he had a client. He was telling prospective jurors not that he was some courtroom magician, whom a jury might fear or distrust because of his skill, but that his very prominence, and the consequent freedom to take only just cases, was a guarantee that his client’s cause was just. This was, of course, bulls**t. He had his pick of cases, but he picked them the way most lawyers with wide choices would — for money, though he wouldn’t take cases where he would embarrass himself and may well have required more money to take on the bad side.
          Of course, outside of some rare Last Lawyer in Town situation, you are under no obligation (unless you’re Legal Aid or otherwise unable to choose your cases) to take a client who makes your skin crawl, because you might well be ineffective. So it is not entirely unfair to criticize lawyers for the causes they choose to advance. It’s harder for some types of lawyers than others. Criminal defense lawyers, by virtue of their jobs, necessarily represent a lot of clients who are factually guilty of some crime more or less like what the prosecutor indicted your client on and are actually plea-bargaining with a jury. Lawyers defending government agencies often have to defend policies they find brainless or heartless or spineless, though they usually defend them on the ground that the agency has a right to enact policies and whether they are brainless, heartless, or spineless is not for a judge or jury to decide. Much criticism of lawyers for taking cases is ill-informed or badly motivated, but we’re paid to take it, and not without resources if things get out of hand.Report

          • Avatar InMD in reply to CJColucci
            Ignored
            says:

            So it is not entirely unfair to criticize lawyers for the causes they choose to advance.

            So every attorney is personally responsible for his or her crappiest client? I doubt you really think that. You mentioned upthread some ridiculous pro se people you’re helping out. Do they reflect on your character? Of course not.

            I’ve been in house most of my career so I don’t deal with this issue much but I started off doing criminal defense at a small firm. Once I drafted an appeal for a client who admitted to the murder he was charged with on the stand at trial (my boss was the one who actually went and argued it but I did the research and wrote the substance). This was a private firm with no obligation to take the case. No regrets and I’d work on it again tomorrow. Neither me nor my old boss (who I have no fondness for) own that client’s actions nor does it say anything negative about anyone at the firm who worked on the case. The job is representing clients.

            Now I do agree that attorneys have to protect their reputations. You don’t make an ass of yourself and take on unmerited nonsense (see our president’s elite strike force) and if an attorney personally can’t be an effective advocate for a particular client then the attorney is right not to take the case. That kind of thing does reflect poorly. But the topic of this post isn’t an example of that. Nowhere close IMO.Report

            • Avatar CJColucci in reply to InMD
              Ignored
              says:

              I think you think we disagree. I don’t think we do. No, lawyers are not responsible for their clients.* But it isn’t entirely unfair, for certain purposes, to point out that, for example, a lawyer who is able to select cases selects certain kinds of cases consistently or defends certain interests consistently. It would be silly for a Democratic administration to hire Eugene Scalia as Secretary of Labor, based largely on his record in private practice, and perfectly predictable that a Republican administration would hire him, based largely on the same reasons. Although, as it turns out, Ronald Sullivan’s defense of Harvey Weinstein probably wasn’t why he lost his gig as a house master at Harvard, given that his job duties included a role in sexual misconduct cases, it would be legitimate to look carefully at whether he would be the right guy for the job. Not disqualifying, but relevant.
              I do agree that much, probably most, criticism of lawyers for the misdeeds of their clients is wrong-headed. I’ve had to put up with it myself. I wish I didn’t have to, and generally sympathize with my brothers and sisters at the bar who do. But this comes with the territory, and we are reasonably well-paid to develop a thick skin.

              *The lunatic pro se litigants were not my clients, but people I was opposing. One of the downsides of my job is the volume of such cases. And you don’t get to pass them on to juniors.Report

              • Avatar InMD in reply to CJColucci
                Ignored
                says:

                All fair, and I agree with that. Maybe it’s a distinction without much difference but I look at that kind of judgment as one of expertise.

                I had a law professor who was notorious for giving a speech about not getting too attached to whatever it is anyone thinks they’re becoming a lawyer to do. He said legal careers and areas of practice are determined more by chance opportunities than anything else. That’s turned out to be true, at least in my case. I never thought I’d end up in the area I work in but I turned out to pretty good at I think and it pays the bills. I assume that’s the case for most lawyers, hence my hesitancy to make conclusions of character based on practice area alone.Report

              • Avatar CJColucci in reply to InMD
                Ignored
                says:

                I heartily agree that people should be far more hesitant than they are to condemn lawyers’ characters because of their areas of practice. My only points are that it is sometimes, for some purposes, legitimate, and that it is damned near inevitable anyway.
                As I said somewhere upthread, the real issue, for me, is usually not whom you represent, but how you represent them. To be specific, I see nothing wrong with Sullivan’s representation of Weinstein and how he went about it, though I do think anyone thinking of hiring him for a position that involved handling sexual misconduct claims damned well ought to ask Sullivan about it and assure him- or herself that he can handle to job. And although I have seen much in the liberal blogosphere generally condemning political liberals who work for BigLaw and thus, necessarily, represent corporations that do dodgy things, I see nothing in Katyals’ work that causes me to question, for example, his fitness for a high position in a Democratic administration or a judgeship.Report

  9. Avatar Jaybird
    Ignored
    says:

    And if it’s an issue of “Congress needs to fix the law”, I see the two most likely outcomes being:

    A: Child Slaves Allowed To Sue (Then Congress Fixes The Law)
    B: Child Slaves Not Allowed To Sue (Then Congress Does X)

    I see A as more likely to be better for everybody involved than B.

    And that’s without even knowing what X is. (Despite suspecting it’s “diddly”.)Report

    • Avatar Chip Daniels in reply to Jaybird
      Ignored
      says:

      This is the subtext behind this discussion.

      Assume Congress did take up a bill effectively banning the import of goods made with slave labor.

      What are the odds it would pass both House and Senate?

      Who are the entities that would lobby against it? What are their chances of success?Report

  10. Avatar Jaybird
    Ignored
    says:

    The New Republic has an essay about the “growing moral rot” in the legal community that this case is evidence for.

    Report

Leave a Reply

Your email address will not be published. Required fields are marked *