Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe: The Twists and Turns of the Alien Tort Statute

Abstract

For four decades now, the Alien Tort Statute (ATS) has been one of the most important tools for pursuing justice for human rights victims in the United States. The statute’s latest trip to the Supreme Court came in the October Term 2020 in a pair of cases: Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe, which were brought by former child slaves trafficked from Mali to Côte d’Ivoire to work on cocoa plantations. The Court granted certiorari to consider whether the ATS could be used to seek compensation from corporations. The decision, issued in June 2021 in the final weeks of the Term, never reached the issue. The Court held instead that the plaintiffs inappropriately sought to apply the ATS extraterritorially.

After providing some background on the cases, this essay will address three key issues that arose in the Court’s decision in the cases. First, it will consider the fight over Sosa’s legacy illuminated in an exchange between the opinion authored by Justice Clarence Thomas and the opinion authored by Justice Sonia Sotomayor. Second, it will examine the surprise win for the plaintiffs on the question of corporate liability. Third, it will examine the likely impact of the Court’s decision on extraterritorial application of the ATS. And, finally, it will argue that it is time for Congress to legislate to ensure accountability for human rights violations carried out by U.S. citizens and corporations even if carried out beyond the territory of the United States.

Keywords: Alien Tort Statute, Human Rights

JEL Classification: K33