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Nos. 19-416 and 19-453In the Supreme Court of the United StatesNESTLÉ USA, INC., Petitionerv.JOHN DOE I, ET AL., RespondentsCARGILL, INC., Petitionerv.JOHN DOE I, ET AL., RespondentsON WRIT OF CERTIORARI TO THE UNITED STATES COURTOF APPEALS FOR THE NINTH CIRCUITBRIEF OF AMICUS CURIAECENTER FOR GLOBAL JUSTICEIN SUPPORT OF RESPONDENTSW. MARK LANIERDARA HEGARKENNETH W. STARRKEVIN P. PARKERBENJAMIN T. MAJORTHE LANIER LAW FIRM10940 W. Sam HoustonParkway N.Suite 100Houston, TX 77064JEFFREY A. BRAUCHCounsel of RecordJAMES J. DUANECENTER FOR GLOBALJUSTICERegent University Schoolof Law1000 Regent UniversityDriveVirginia Beach, VA [email protected](757) 352-4660Counsel for Amicus Curiae

TABLE OF CONTENTSPageTABLE OF AUTHORITIES . iiINTEREST OF AMICUS CURIAE . 1INTRODUCTION AND SUMMARY OFARGUMENT . 2ARGUMENT . 5I. Both Foreign-Policy and Separation-of-PowersConcerns Shaped Sosa, Kiobel, and Jesner . 5II. Corporate Liability For IntentionallyFacilitating Child Slavery And TraffickingAbroad Is Entirely Consistent With UnitedStates Foreign Policy . 8A. United States Foreign Policy EmphasizesHuman Rights And The Rule Of Law . 9B. Failing To Hold Americans Liable ForOutsourcing Child Slavery Undermines U.S.Foreign Policy And The Rule Of Law . 13III.In The Absence Of Diplomatic Concerns,Separation-Of-Powers Principles Present NoObstacle To ATS Liability In This Case . 16CONCLUSION . 21

iiTABLE OF AUTHORITIESPage(s)CasesAlexander v. Sandoval,532 U.S. 275 (2001) . 6Argentine Republic v. Amerada HessShipping Corp.,488 U.S. 428 (1989) . 20Correctional Services Corp. v. Malesko,534 U.S. 61 (2001) . 6, 17In re Marcos,25 F.3d 1467 (9th Cir. 1994) . 7Jesner v. Arab Bank, PLC,138 S. Ct. 1386 (2018) . passimKiobel v. Royal Dutch Petroleum Co.,569 U.S. 108 (2013) . passimMarbury v. Madison,5 U.S. (1 Cranch) 137 (1803) . 16Mohamad v. Palestinian Authority,566 U.S. 449 (2012) . 19Sarei v. Rio Tinto, PLC,671 F.3d 736 (9th Cir. 2011) . 14Sosa v. Alvarez-Machain,542 U.S. 692 (2005) . 5, 6, 7, 14

iiiStatutes22 U.S.C. § 2651a(c)(2) . 1022 U.S.C. § 7103(e) . 1022 U.S.C. § 7107(b)(1) . 11H.R. Res. 1451, 110th Cong. § 2(a)(1) (2008) . 12International Security Assistance andArms Export Control Act of 1976,Pub. L. No. 94-329, 90 Stat. 729 . 10Letter from Deputy Secretary of State RobertIngersoll to Senator James Eastland(Apr. 18, 1975) . 9Torture Victim Protection Act of 1991,Pub. L. No. 102-256, 106 Stat. 73 . 19, 20Other Authorities2019 Findings on the Worst Forms of Child Labor,U.S. Dep’t Lab. (last visited Oct. 19, 2020),https://perma.cc/KDB4-TVWC . 112020 Investment Climate Statements: Côte d’Ivoire,U.S. Dep’t St. (Sept. 9, 2020)https://perma.cc/4D8P-DHXL . 184 Matthew Henry, An Exposition of the Old and NewTestaments (George Burder & Joseph Hughes,eds., Philadelphia, Haswell, Barrington, &Haswell 1838) (1708–10) . 2

ivAbout Us, U.S. Dep’t St., Bureau of Democracy,Hum. Rts., & Lab. (last visited Oct. 13, 2020),https://perma.cc/UV92-6DME . 10Brief for the United States as Amicus CuriaeSupporting Appellees, Khulumani v. Barclay Nat.Bank Ltd., 504 F.3d 254 (2d Cir. 2007)(Nos. 09-2778-cv, et al.) . 14Brief of Amicus Curiae The Government of Canadain Support of Dismissal of the Underlying Actionat 12, Presbyterian Church of Sudan v. TalismenEnergy Inc., 582 F.3d 244 (2d Cir. 2009)(07-0016-cv). 14Brief of the Government of the United MexicanStates as Amicus Curiae in Support of Petitioners,Hernandez v. Mesa, 140 S. Ct. 735 (2020)(No. 17-1678). 14I. W. Slotki, The Soncino Books of the Bible:Isaiah (1947) . 2International Labor Organization: ConventionConcerning the Prohibition and ImmediateElimination of the Worst Forms of Child Labor,38 I.L.M. 1207 (1999) . 3International Programs, U.S. DEP’T OF STATE(last visited Oct. 13, / . 12Isaiah 58:6-7 . 2

vJeffrey M. Blum & Ralph G. Steinhardt,Federal Jurisdiction over International HumanRights Claims: The Alien Tort Claims Act afterFilartiga v. Pena-Irala,22 Harv. Int'l. L.J. 53 (1981). . 20Martin Luther King, Jr., Letter from aBirmingham Jail (1963) . 1Our Mission, U.S. Dep’t St., Off. Monitor & CombatTrafficking Persons (last visited Oct. 13, 2020),https://perma.cc/4BD7-3JXA . 10Peter Whoriskey & Rachel Siegel, Cocoa’s ChildLaborers, WASH. POST (June 10, 2019),https://perma.cc/U3Y6-9MRH . 3Trafficking in Persons Report: 20th Edition,U.S. Dep’t St. (June 2020) . 11RegulationsProclamation No. 9561, 82 Fed. Reg. 1159(Dec. 28, 2016) . 3Proclamation No. 9975, 85 Fed. Reg. 633(Dec. 31, 2019) . 3, 13Constitutional ProvisionsU.S. Const. amend. XIII . 4

INTEREST OF AMICUS CURIAE1The Center for Global Justice (“the Center”) isan academic center within the Regent UniversitySchool of Law. The Center promotes the rule of lawand seeks justice for the world’s downtrodden – thepoor, the oppressed, and the enslaved. We advocate anatural law foundation for human rights. Embeddedin that advocacy, we seek to combat humantrafficking and protect children, some of the mostvulnerable and abused people in our world today.The fundamental and inalienable equality ofall individuals represents a core tenet of JudeoChristian faith. We believe that God createdhumankind in his own image and desires that allenjoy the sacred blessings of liberty in sharedcommunity. This unifying principle served as theintellectual and moral basis of the Founding. AsAmericans, we embrace the words of the Declarationof Independence that all persons are self-evidentlyentitled to the rights extolled for centuries in theJudeo-Christian and natural law traditions.Slavery violates the most basic of these Godgiven rights – freedom. It spurns human dignity andequality and “substitutes an ‘I-it’ relationship for the‘I-thou’ relationship.” Martin Luther King, Jr., Letterfrom a Birmingham Jail (1963). All the more violativeof first principles is the execrable practice of childThe parties have consented to the filing of this amicusbrief. No counsel for a party authored this brief in whole or inpart, and no party or counsel for a party made a monetarycontribution intended to fund the preparation or submission ofthis brief.1

2slavery. The prophetic tradition – embodied in Isaiah58:6-7 – calls us “to set the oppressed free and breakevery yoke . . . and not to turn away from [our] ownflesh and blood.” We endeavor to “break the yoke ofslavery itself, that it may not serve again anothertime.” 4 Matthew Henry, An Exposition of the Old andNew Testaments 270 (George Burder & JosephHughes, eds., Philadelphia, Haswell, Barrington, &Haswell 1838) (1708–10); see also I. W. Slotki, TheSoncino Books of the Bible: Isaiah 284 n.6f (1947)(noting that “[t]he right ways of observing a fast”include “the abolition of slavery and oppression”).Yet, in these consolidated cases, petitionerswould have this Court turn a blind eye to Americancorporations’ exploitative outsourcing of humanslavery, the bonds of which have been cruelly imposedupon children for commercial gain. Following theexamples of William Wilberforce, Frederick Douglass,Harriet Tubman, and Abraham Lincoln, andconsistent with foundational Judeo-Christianprinciples and the words of the First Congress, weurge the Court emphatically to reject petitioners’effort to rob words chosen by Congress in 1789 of theirordinary public meaning. Nothing in law or logiccounsels against granting full berth to the textualimport of the Founding generation’s formativelegislative handiwork.INTRODUCTION ANDSUMMARY OF ARGUMENTReaffirming our national commitment tocombatting slavery around the world, PresidentTrump observed that “[h]uman trafficking erodes

3personal dignity and destroys the moral fabric ofsociety. It is an affront to humanity that tragicallyreaches all parts of the world.” Proclamation No.9975, 85 Fed. Reg. 633, 633 (Dec. 31, 2019). Threeyears earlier, President Obama observed thatslavery’s “fundamental notion [is] in directcontradiction with our founding premise that we areall created equal,” Proclamation No. 9561, 82 Fed.Reg. 1159, 1159 (Dec. 28, 2016), and remindedAmericans “that our freedom is bound to the freedomof others,” id. at 1160.In Côte d’Ivoire, thousands of children aretrafficked from neighboring Mali and Burkina Faso.They are forced to work long hours wieldingmachetes, carrying heavy loads, and sprayingdangerous pesticides on cocoa farms. Their labor isprohibited by Ivoirian law. And the internationalcommunity universally condemns child slavery andthe economic exploitation of children. InternationalLabor Organization: Convention Concerning theProhibition and Immediate Elimination of the WorstForms of Child Labor, 38 I.L.M. 1207 (1999). Yet, aslow cocoa prices exacerbate poverty in the region,child labor continues to thrive. See Peter Whoriskey& Rachel Siegel, Cocoa’s Child Laborers, WASH. POST(June 10, 2019), https://perma.cc/U3Y6-9MRH.Respondents are victims of trafficking andforced labor. In their complaint, respondents describebeing beaten and tortured, and witnessing otherchildren being beaten and tortured. They allege thatpetitioners had “firsthand knowledge” of theirsuppliers’ slaveholding practices, J.A. 318, and thatpetitioners engaged in a pattern and practice of

4encouraging the use of child slave labor to obtaincocoa at the lowest possible prices. J.A. 241–42.Needless to say, American corporations cannotenslave children – or anyone else – within theterritorial jurisdiction of the United States. U.S.Const. amend. XIII. But if respondents’ allegationsare true, then these two American companies have, inessence, outsourced their unspeakably exploitativepractices to foreign shores where the rule of law isutterly mocked.This behavior cannot be countenanced as amatter of law, morality, or natural justice. Christian –and, indeed, universal – ethics mandate itscondemnation. The United States courts should notturn a blind eye to allegations of outsourced childslavery by American corporations. Indeed, to do soonly invites more of the same.Americancommercialexploitationofdefenseless children languishing in at-risk,broken societies cries out for a remedy. Consistentwith the fundamental values of human decencyundergirding our constitutional republic, the veryFirst Congress of the United States provided onethrough the Alien Tort Statute (“ATS”). Neither theATS nor this Court’s precedents prevent this casefrom proceeding. The law of nations speaks withclarity and consistency: slave labor – especially childslave labor – is a profoundly barbaric practice to bewholly condemned. And though foreign-policy andseparation-of-powers concerns have counseled thisCourt’s understandable restraint in prior cases, thesevery considerations call for the exercise of federaljudicial power in the singular circumstances where,

5employing their considerable command-and-controlpowers, American companies knowingly countenancethe gross violation of fundamental internationalnorms.ARGUMENTI.Both Foreign-Policy and Separation-ofPowers Concerns Shaped Sosa, Kiobel,and Jesner.At its core, the ATS exists to fosterinternational comity. Jesner v. Arab Bank, PLC, 138S. Ct. 1386, 1406 (2018). The First Congress passedthe ATS after two attacks against foreign officialsexposed the United States’ “incapacity to deal with”violations of international law. Sosa v. AlvarezMachain, 542 U.S. 692, 716 (2005). “[I]f notadequately redressed,” such violations “could rise toan issue of war.” Id. at 715. Thus, the ATS confers onUnited States courts jurisdiction over – and power torecognize – violations of the law of nations. Id. at 724.Beginning with Sosa, this Court has decidedthree ATS cases highlighting the opposite problem:the potential for judicial overreach to triggerinternational strife. In each of these cases, this Court– before declining jurisdiction – carefully evaluatedthe dangers of judicial interference with foreignrelations. Id. at 728; Jesner, 138 S. Ct. at 1407(quoting Kiobel v. Royal Dutch Petroleum Co., 569U.S. 108, 124 (2013)) (warning of “serious foreignpolicy consequences” arising from judicial overreach).Each case featured challenges in Americancourts to foreign defendants’ foreign actions. This

6common pattern presented common problems. Chiefamong them was judicial interference with thepolitical branches’ foreign-policy prerogatives. Forinstance, the Court noted that freely recognizingactions under the ATS “raise[s] risks of adverseforeign policy consequences.” Sosa, 542 U.S. at 728.Further, applying the ATS to foreign actors’ foreignconduct can incite “diplomatic strife” and couldencourage other nations to “hale our citizens intotheir courts for alleged violations of the law of nationsoccurring in the United States.” Kiobel, 569 U.S. at124. And the foreign-policy concerns implicated byforeign corporate liability guided this Court to leavethe question to Congress. Jesner, 138 S. Ct. at 1403.Amici participation by foreign nations in allthese cases further highlights the diplomatic issuesthat frequently informs ATS litigation. Foreignnations filed amicus briefs in Sosa, Kiobel, andJesner, objecting to the proposed exercise ofjurisdiction. Those briefs ran the gamut fromoutlining “basic principles of international law,” Sosa,542 U.S. at 733 n.21, to asserting that such litigationwould present a “grave affront” to the amicus nation’ssovereignty. Jesner, 138 S. Ct. at 1407.These foreign-policy issues implicate otherconcerns with respect to separation of powers in ATSlitigation. In Sosa, the Court noted that “the possiblecollateral consequences of” ATS litigation call forjudicial deference to Congress when it is unclear thatexercising jurisdiction would be consistent with thestatute’s text and purpose. See 542 U.S. at 727 (citingCorrectional Services Corp. v. Malesko, 534 U.S. 61,68 (2001); Alexander v. Sandoval, 532 U.S. 275, 286–287 (2001)). This issue arose once again in Jesner,

7where the Court held that foreign corporate liabilityis “unnecessary to advance [the ATS’s] purpose.” 138S. Ct. at 1403. Because holding foreign corporationsliable for foreign actions in American courts threatensto cause diplomatic friction, the Court found itimproper to exercise jurisdiction in the absence ofcongressional action.Consistent with these prudential concerns, thisCourt carefully delineated the bounds of judicialdiscretion under the ATS. In order properly to lie,claims must allege violations of international normsthat are “specific, universal, and obligatory.” Sosa,542 U.S. at 732 (quoting In re Marcos, 25 F.3d 1467,1475 (9th Cir. 1994)). In addition, claims must “touchand concern” United States territory “with sufficientforce to displace the presumption againstextraterritoriality.” Kiobel, 569 U.S. at 124–25. And,finally, the courts have no jurisdiction over ATSclaims advanced against foreign corporations. Jesner,138 S. Ct. at 1407.But this case fundamentally breaks thatcommon pattern. This is not a situation involvingforeign defendants acting on foreign soil. To thecontrary, respondents allege that Americancorporations acted on both American and foreign soilto encourage and facilitate child slavery andtrafficking in West Africa. As Justice Gorsuchexplained in Jesner, the fact that petitioners areAmerican fundamentally alters the prudentialcalculus:It is one thing for courts to assume thetask of creating new causes of action toensure our citizens abide by the law of

8nations and avoid reprisals against thiscountry. It is altogether another thingfor courts to punish foreign parties forconduct that could not be attributed tothe United States and thereby riskreprisals against this country.Id. at 1419 (Gorsuch, J., concurring) (emphases inoriginal).While our courts lack authority to reach intoforeign territories and police foreign actors, it isdecidedly within the powers of the federal judiciary tohold American actors liable for trampling on humanrights in developing nations. Such use of jurisdictionis “uncontroversial” under international law. Kiobel,569 U.S. at 136 (Breyer, J., concurring) (quoting Briefof the European Commission on Behalf of theEuropean Union as Amicus Curiae in Support ofNeither Party at 11, Kiobel v. Royal Dutch PetroleumCo., 569 U.S. 108 (2013) (No. 10-1491)) (“It is‘uncontroversial’ that the ‘United States may . . .exercise jurisdiction over ATS claims involvingconduct committed by its own nationals within theterritory of another sovereign, consistent withinternational law.’ ”).II.Corporate Liability For g Abroad Is Entirely ConsistentWith United States Foreign Policy.Petitioners assert that American corporateliability for exploitative actions at home and abroadthreatens to usher in a plethora of international andconstitutional woes. Diplomatic relations will be

9threatened, petitioners gravely warn, and separationof-powers principles imperiled by imposing ATSliability on domestic corporations. This is allcontrived.Indeed, in the limited context of Americancompanies encouraging and facilitating commerciallyexploitative child slavery, petitioners’ argument isentirely fanciful. Judicial application of the ATS inthis highly specific and narrow context actuallyfosters America’s diplomatic goals. These policies areembodied both in elaborate structures within theExecutive Branch and a longstanding bipartisancommitment to human rights.A. United States Foreign Policy EmphasizesHuman Rights And The Rule Of Law.Consider first the architecture of theDepartment of State, which stands as a structuralrebuttal to petitioners’ imagined concerns. In 1975,the State Department created the position ofCoordinator for Humanitarian Affairs “to bring aclear focus on human rights issues . . . [and] to assureattention at the highest level, as these issuesdeserve.” Letter from Deputy Secretary of StateRobert Ingersoll to Senator James Eastland (Apr. 18,1975).2 The following year, Congress amended theForeign Assistance Act, declaring advancement ofhuman rights around the world to be “a principal goalof the foreign policy of the United States.”International Security Assistance and Arms Export2Available at https://perma.cc/YH77-ZFPN.

10Control Act of 1976 § 301(a), Pub. L. No. 94-329, 90Stat. 729, 748. In the same measure, Congress madethe Coordinator for Humanitarian Affairs aPresidentialappointeesubjecttoSenateconfirmation. Id. § 301(b), 90 Stat. at 750. Today, thatposition is known as the Assistant Secretary of Statefor Democracy, Human Rights, and Labor. 22 U.S.C.§ 2651a(c)(2).Under the purview of the Under Secretary forCivilian Security, Democracy, and Human Rights, theAssistant Secretary heads the Bureau of Democracy,Human Rights, and Labor. Consistent withCongress’s declared mission of advancing humanrights, the Bureau promotes “the fundamentalfreedoms set forth in the founding documents of theUnited States” and complementary principlesembodied in the Universal Declaration of HumanRights.3 The Bureau seeks to combat humantrafficking and forced labor around the world.Congress enhanced this formidable antislavery infrastructure by creating the Office toMonitor and Combat Trafficking in Persons (TIPOffice). Victims of Trafficking and Violence ProtectionAct of 2000 § 105(e), 22 U.S.C. § 7103(e). The TIPOffice “leads the Department’s global efforts tocombat modern slavery”4 and assists in preparing theAbout Us, U.S. Dep’t St., Bureau of Democracy, Hum.Rts., & Lab. (last visited Oct. 13, 2020), https://perma.cc/UV926DME.3Our Mission, U.S. Dep’t St., Off. Monitor & ttps://perma.cc/4BD7-3JXA.4

11State Department’s annual Trafficking in PersonsReport (“TIP Report”) mandated by Congress. 22U.S.C. § 7107(b)(1).The widely heralded TIP Report “signal[s] theU.S. government’s resolve to fight human trafficking”and is “a standard-bearer for the principles enshrinedin” domestic and international human traffickinglaws. Trafficking in Persons Report: 20th Edition 2–3,U.S. Dep’t St. (June 2020).5 Twenty years ago, the TIPOffice published its first report, “mark[ing] a pivotfrom indignation to positive action” in the struggleagainst human trafficking. Id. at 2. The report “servesas a roadmap for diplomatic engagement” and is usedby State Department officials “to draw attention tohuman trafficking, discuss policy recommendations,and work toward solutions.” Id. at 8.The Department of State by no means standsalone in the U.S. Government’s campaign againstslavery and human trafficking. Through the Bureauof International Labor Affairs (ILAB)’s Office of ChildLabor, Forced Labor, and Human Trafficking, theLabor Department fights modern slavery around theglobe. ILAB’s 2019 Findings on the Worst Forms ofChild Labor described the nettlesome problems ofhuman trafficking and the worst forms of child laborin the Ivoirian cocoa industry, noting the insufficiency5Available at https://perma.cc/RA72-UFC6.

12of Ivoirian law enforcement programs to address thisongoing human tragedy.6The political branches not only collaborativelyerected these structures, but Congress oversees theiroperation through budget and oversight hearings. Asone example, Congress has appropriated tens ofmillions of dollars over the last three years to the TIPOffice’s Program to End Modern Slavery (PEMS).PEMS, in turn, has awarded approximately 100million of foreign assistance since 2017 to reduce thisabhorrent practice.7 Equally illustrative of Congress’scommitment to human rights, including religiousfreedom, the House of Representatives establishedthe Lantos Human Rights Commission in 2008. Thebipartisan commission is charged with “[d]evelopingcongressional strategies to promote, defend, andadvocate internationally recognized human rightsnorms,” including the abolition of child slavery. H.R.Res. 1451, 110th Cong. § 2(a)(1) (2008).As these human-rights promoting structuresdemonstrate, the United States has been unequivocalin seeking to halt slavery and its evil companion,human trafficking. By presidential proclamation eachJanuary, the federal government observes “NationalSee generally 2019 Findings on the Worst Forms ofChild Labor, U.S. Dep’t Lab. (last visited Oct. 19, 2020),https://perma.cc/KDB4-TVWC.6International Programs, U.S. DEP’T OF STATE (lastvisited Oct. 13, 2020), https://www.state.gov/internationalprograms/. The primary recipient of these funds has been theGlobal Fund to End Slavery, whose mission “is to end modernslavery by making it economically unprofitable.” Ibid.7

13Slavery and Human Trafficking Prevention Month.”Last year, President Trump’s proclamation touted theroles of no fewer than five executive departments incombatting slavery at home and abroad, including theDepartments of Justice, Homeland Security, State,Health and Human Services, and Transportation.Proclamation No. 9975, 85 Fed. Reg. 633, 633 (Dec.31, 2019). In addition, President Trump praised thework of the Interagency Task Force to Monitor andCombat Trafficking, as well as the Office ofManagement and Budget, for their contributions tothe ongoing effort to stop slavery and architecture, the enduring scourge of Americancorporate utilization of overseas child slavery makesa mockery of our nation’s oft-stated commitment tohuman dignity and freedom.B. Failing To Hold Americans Liable ForOutsourcing Child Slavery UnderminesU.S. Foreign Policy And The Rule Of Law.In this case, the diplomatic concerns thatfrequently arise in ATS suits are wholly absent. Forthe very reason that child slave labor standsuniversally condemned by the law of nations, no onecan reasonably assert that providing a federal forumfor victims of American corporate exploitation wouldsomehow trigger diplomatic disapprobation.And indeed, no one other than the selfinterested petitioners has made that assertion.Though petitioners insist that ATS liability fordomestic corporations “risks ‘embroil[ing]’ the United

14States in ‘international controversies,’ ” not oneforeign state has come forward in this case to warn ofpotential diplomatic friction. Pet. Br. (Nestlé) 45. Nostate or foreign entity has yelled “stop.”Contrast this deafening silence with prior ATScases, in which foreign states voiced strong objectionto the assertion of jurisdiction. Cf. Jesner, 138 S. Ct.at 1407 (highlighting objections raised by amicus theHashemite Kingdom of Jordan); Kiobel, 569 U.S. at137 (Breyer, J., concurring) (noting the objections ofamici the United Kingdom and the Netherlands);Sosa, 542 U.S. at 733 n.21 (discussing objectionsraised by amici the European Commission and SouthAfrica); see also Brief of the Government of the UnitedMexican States as Amicus Curiae in Support ofPetitioners, Hernandez v. Mesa, 140 S. Ct. 735 (2020)(No. 17-1678).8Nor has this Court received objections from anymembers of Congress or executive agencies taskedwith implementing and advancing human rightspolicies. Neither former Senator Harkin norThere are also myriad examples of foreign statesappearing as amici curiae before United States Circuit Courts inATS cases. E.g., Sarei v. Rio Tinto, PLC, 671 F.3d 736, 799 (9thCir. 2011), cert. granted, judgment vacated, 569 U.S. 945 (2013)(citing the amicus brief of the Governments of the UnitedKingdom and the Commonwealth of Australia); Brief of AmicusCuriae The Government of Canada in Support of Dismissal ofthe Underlying Action at 12, Presbyterian Church of Sudan v.Talismen Energy Inc., 582 F.3d 244 (2d Cir. 2009) (07-0016-cv);Brief for the United States as Amicus Curiae SupportingAppellees 6–8, Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d254 (2d Cir. 2007) (Nos. 09-2778-cv et al.) (providing objectionsfrom South African and German officials).8

15Representative Engel has appeared to suggest thatATS liability under these child slavery-infectedcircumstances would somehow undermine theHarkin-Engel Protocol. Far from it.Nevertheless, the Acting Solicitor Generalargues that “active corporate investment” indeveloping nations “is an essential foundation ofhuman rights.” Gov’t Br. 16, quoting Jesner, 138 S.Ct. at 1406. From this uncontroversial premise, theActing Solicitor General boldly asserts that corporateliability under the ATS for aiding and abetting childslavery threatens to “undermine U.S. economicincentives” for foreign investment. Ibid.This is far-fetched. The Government’sargument receives not a word of support from thedeveloping nations these policies are intended to help.The reason is self-evident: Egregious human rightsabuses, and especially child slavery and trafficking,cannot possibly serve as the “foundation for humanrights.” The continuing need for private investment indeveloping nations should not provide a license toencourage and facilitate child slavery in the supplychain. The ATS does not require strict liability forAmerican corporations whose foreign suppliersperpetrate human rights abuses. But Americancompanies that actively enable and exploit thosehuman rights abuses in violation of the law of nations,as petitioners are alleged to have done, fallcomfortably within the scope of the ATS.In short, the U.S. Government should not beheard to speak out of both sides of its mouth on thisissue. Immunizing corporations from ATS liabilitydiabolically incentivizes American companies to run

16roughshod over obligatory international norms insearch of more favorable market conditions. Failing tohold American corporations accountable under theseextreme circumstances diminishes the United States’international stature, erodes American credibility inthe battle against human trafficking, and, morecorrosively, undermines the rule of law.Not a single overseas institution – public orprivate – suggests that federal judicial intercessionwith respect to U.S.-countenanced child slaveryexploitation will somehow inflame diplomatictensions or dissuade private investment. Indeed, todraw from the Great Chief Justice’s observation inMarbury v. Madison, that sort of assertion is simplytoo extravagant seriously to be maintained. 5 U.S. (1Cranch) 137, 170 (1803).III.In The Absence Of Diplomatic Concerns,Separation-Of-Powers Principles PresentNo Obstacle To ATS Liability In This Case.Despite foreign-policy considerations weighingstrongly in favor

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