Economically rational slavery

Doe v. Nestle USA, Inc., No. 10-56739 (9th Cir. June 20, 2015) (Bea, J., dissenting from denial of rehearing en banc).

Ripening cocoa pods on the tree

Ripening cocoa pods on the tree

The plaintiffs here are former child slaves forced to work on cocoa plantations in the Ivory Coast. They brought claims under the Alien Tort Statute, or ATS, against corporations who had bought cocoa from the plantations, alleging that the corporations had aided and abetted slavery. The ATS gives the federal courts jurisdiction over certain claims alleging violations of international law. Last year, a Ninth Circuit panel allowed the former slaves’ claims to go forward. 

In May, Judge Bea, joined by a large number of other judges, dissented from the decision not to rehear the case en banc. The May order has been amended today, although it doesn’t appear that Judge Bea’s dissent has been altered. In any case, the amended order gives observers who may have missed the May order an opportunity to look at Judge Bea’s extraordinarily interesting dissent.

The dissent raises a number of important questions about the ATS’s reach, but the one I find most interesting is the question of purpose. The panel’s decision agreed with the corporate defendants that the plaintiffs, to prevail on their claims, had to show that the defendants had acted with the purpose of maintaining plaintiffs’ enslavement.

Judge Bea agrees that a showing of purpose is necessary, but disagrees that the plaintiffs have made such a showing. If the plaintiffs’ allegations are true, then the defendants knew that slaves worked on the plantations from which they bought cocoa—plantations to which they provided certain kinds of technical assistance. The defendants, plaintiffs allege, also lobbied against congressional efforts to curb child slavery. All of this merely shows knowledge, says Judge Bea. It doesn’t show a purpose to maintain slavery. “Pursuit of profit over human welfare,” he argues, only shows that the defendants wanted “to buy cocoa cheap,” not “to promote slavery as a means of buying cheap.” 

This is a fascinating position. Under it, corporations who know they are purchasing goods from slavers might be liable if their purchases were economically irrational, because that would tend to show a purpose to promote or maintain slavery itself. Merely using economically rational slavery as part of a supply chain, however, would be exempt from liability.