0:00:00.0 Speaker 1: We will hear argument first this morning in Case 19-416 Nestlé USA versus Doe and the consolidated case. Mr. Katyal?
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0:00:13.7 Leon: Hey, everyone. This is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about Nestlé v. Doe. In this case, Nestlé argued that it couldn't be held responsible in the US court system for aiding and abetting child slavery in the cocoa trade abroad.
0:00:33.0 Speaker 3: Kids that have been trafficked into Ivory Coast, they get brought in and they work all the time. They don't have their parents with them, they're living in huts in the woods. We saw the water that they drank, it was just like this cloudy stuff that they pulled out of the swamp. It's pretty dismal conditions for those kids.
0:00:52.6 Speaker 4: Really heartbreaking to...
0:00:53.9 Leon: Nestlé was represented before the Supreme Court by a high-profile lawyer, Neal Katyal, who successfully argued to the law in question does not apply to corporations. Thanks to Katyal's efforts, the case was dismissed earlier this year, causing your hosts to wonder, How much responsibility does a corporate lawyer hold for the actions of his clients? This is 5-4, the podcast about how much the Supreme Court sucks.
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0:01:22.7 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused our civil rights to collapse like an American puppet government in the Middle East.
0:01:31.8 Michael: Whoof.
0:01:32.3 Rhiannon: Wow!
0:01:32.8 Peter: I am Peter. Too soon?
0:01:36.7 Michael: Wow. [chuckle]
0:01:37.7 Peter: I'm here with Michael.
0:01:38.7 Michael: Hey, everybody.
0:01:39.7 Peter: And Rhiannon.
0:01:40.5 Rhiannon: Happy to be here.
0:01:42.1 Peter: This week's case is Nestlé v. Doe. This is a case about whether Nestlé and Cargill can get into trouble in America for facilitating a little bit of child slavery abroad. There is a law dating back to 1789 called the Alien Tort Statute, which allows for non-citizens to sue Americans in American courts for breaches of international law. But exactly under what circumstances someone can sue under this law has long been debated. In this case, there were several people who were forced into slavery as children in Ivory Coast, made to work on cocoa farms, and they are suing Nestlé, saying that Nestlé worked with the cocoa farms despite knowing that child slavery was being practiced there. In other words, they're saying that while those corporations did not engage in child slavery themselves, they knowingly aided and abetted it.
0:02:40.0 Peter: But the Supreme Court, in an eight to one decision, tosses the case out saying that, "None of this has enough of a connection to the United States to be heard in a United States Court." This case is about how the law has come to protect corporations that engage in human rights violations abroad, but it's also about lawyers. Because, it came into the spotlight late last year when a debate started around Neal Katyal, perhaps the most esteemed appellate lawyer in the country, representing Nestlé in front of the Supreme Court. And some people said, "Hey, maybe representing one of the most amoral corporations on earth in their child slavery case should be frowned upon." And others said, "No, actually, it's fine, lawyers' only moral obligation is to represent their clients." So we're gonna talk about corporate shenanigans abroad, but we are also going to talk about the ongoing battle for the lawyer's soul. So Rhi, let's dive into some background here.
0:03:46.7 Rhiannon: Yeah, so let's talk about one of the most horrific corporations on earth, Nestlé. We should note that we are focusing on Nestlé, there were actually multiple consolidated cases that were made into this one that came to the Supreme Court. Another extremely evil corporation, Cargill, was also a defendant in this case, but we're just gonna focus on Nestlé and their evil history. Nestlé is the largest food company in the world by revenue. It was founded over 150 years ago, and it's headquartered in Switzerland, though of course, these really huge international conglomerates have divisions and subsidiaries all over the world, which is how the entity that is being sued here is an American corporation.
0:04:39.4 Rhiannon: So 29 of Nestlé's brands have annual sales over $1 billion. We're talking Nescafe, we're talking Kit Kat, we're talking Stouffer's. These are big money makers. And just to touch on the very briefest of run-downs of the kind of evil shit that Nestlé has been getting into over the years with all that money, they persuaded the World Water Council, at one point, to change its statement on access to drinking water all around the world from a right to a "need," which of course, is just one of their steps in the generations long campaigns to continue to allow them to take control of aquifers all over the world so that they can bottle water for profit. Nestlé has paid for massive advertising campaigns, trying to convince people that bottled water is not an environmental problem.
0:05:33.9 Rhiannon: Huge class action lawsuits have been filed against Nestlé for price-fixing during a famine in Ethiopia, one of the poorest countries in the world. Nestlé demanded that Ethiopia pay them the $6 million in debt that they were owed. They've had advertising and lobbying campaigns in underdeveloped countries to convince people that their baby formula, the Nestlé-made baby formula, is better for a baby's health than breastfeeding. There have been NGO investigations showing that they've contributed to severe deforestation in other countries by illegally growing their crops in national parks and other environmentally protected areas. There have been forced labor controversies in Asia. And of course, we have this ongoing forced labor, aka slavery problem in West Africa.
0:06:25.1 Michael: Wait, before we continue, sorry, there's an atrocity that I've been thinking of that you missed, which is the massive amount of money and time they've put into convincing Americans that a key lime pie-flavored Kit Kat is a viable treat that they should be spending their money on.
0:06:47.0 Rhiannon: Take them to The Hague now.
0:06:49.3 Michael: [laughter] Yeah, that's right. Get that shit out of here in affront...
0:06:53.8 Rhiannon: To humanity. [laughter]
0:06:55.4 Michael: To candy-eaters and key lime pie lovers everywhere.
0:07:00.4 Rhiannon: Alright, I'm glad you added that, Michael.
0:07:01.5 Michael: Yeah, no problem.
0:07:03.2 Rhiannon: So yeah, turning to this specific case, the suit against Nestlé is brought originally by six people from Mali who said that as children, they were trafficked into Ivory Coast and enslaved on cocoa plantations. They worked without pay for 12-14 hours a day, they said. They were subject to physical abuse, they had minimal access to food and shelter, and they say that they had no identification or travel documents on them. They were never told how to leave. They didn't even know exactly where they were in Ivory Coast, and they didn't know how to get back to their families.
0:07:41.6 Michael: And they had to eat the key lime Kit-Kats.
[laughter]
0:07:52.4 Rhiannon: One of these plaintiffs was just 11 when he was trafficked into Ivory Coast, and then he frequently had to apply pesticides and herbicides to the cocoa crops without any protective clothing. He worked for two years without ever being paid. Another plaintiff said that he was constantly bitten by bugs during the two years that he was enslaved on a cocoa plantation. He was never paid. He, still to this day, has visible scars on his hands and arms from machete accidents because these are children who have to work with machetes. And the plaintiffs say that they were kept isolated from other children on the plantations. They often worked with other children who spoke different dialects or languages than them, so there wasn't a lot of communication between the children there.
0:08:41.2 Rhiannon: And field work that was conducted by the legal organizations that are involved here, field work that happened in the process of putting this case together, found that these abuses are still continuing today. This is still the status of forced child labor on cocoa plantations in Ivory Coast. So, it's important to clarify that Nestlé did not own these plantations in Ivory Coast, but Nestlé's role here still is not insignificant. They buy the cocoa from these plantations, and they provide many plantations with training, fertilizer, equipment, and tools, and straight-up cash in exchange for exclusive rights to purchase that cocoa. So, in many instances, Nestlé is the only buyer of the cocoa from these plantations.
0:09:31.6 Peter: And by the way, wouldn't it make economic sense for them if they're supplying just about everything to these farms, and they're the exclusive buyers, to simply run them themselves? I wonder why they don't. I wonder if there's some sort of legal distance they're trying to maintain between these slave plantations and themselves that might explain why they don't just buy them and run them out.
0:09:56.5 Rhiannon: That's the question, Peter. And a quick note, that while Nestlé is historically, obviously, one of the most evil corporations ever, they're not quite alone in their evil. A quick check of the amici that were filed in this case, these are briefs that are filed by...
0:10:16.0 Michael: Is it amici? I thought it was amici.
0:10:18.1 Rhiannon: I don't know.
0:10:19.4 Peter: You're thinking of Avicii, the band.
[laughter]
0:10:22.7 Rhiannon: The DJ.
0:10:23.6 Peter: I wasn't sure if it was a band or a DJ or what. No one knows what Avicii is, I don't think. That's...
0:10:28.5 Rhiannon: Yeah, I've always heard amici.
0:10:30.0 Michael: Oh, maybe I'm wrong.
0:10:31.5 Peter: I thought it was an amici too, but then as soon as you said it, I was like, that does sound right as well, I don't know.
0:10:35.8 Rhiannon: Yeah, maybe it's amici. I will say amicus briefs. How about that? [laughter]
0:10:38.2 Michael: Yes, there we go.
0:10:38.9 Peter: Amicus brici.
[laughter]
0:10:43.9 Rhiannon: Okay, so anyway, as I was saying, Nestlé is not alone in being evil, as demonstrated by all of these crazy corporations who filed amicus briefs, so-called interested parties or friends of the court. You got your Coca-Cola, you got your Chevron, you got your World Cocoa Foundation.
0:11:04.7 Peter: Naturally.
0:11:05.1 Rhiannon: You've got your US Chamber of Commerce.
[laughter]
0:11:09.0 Rhiannon: And also the libertarian Cato Institute. All of these monsters filing briefs in support of Nestlé here, so a lot of fire power adding their weight to Nestlé's case.
0:11:24.0 Peter: Oh, Jesus Christ. Okay, so let's talk about the law here a little bit, the Alien Tort Statute dates back to 1789. What it says verbatim is, "The district court shall have original jurisdiction of any civil action by an alien for tort only, committed in violation of the law of nations or a treaty of the United States. So in short, a non-citizen can sue in federal court for violations of international law. Simple enough, but what exactly the contours of that are, is very unclear. Its precise meaning is sort of hotly debated. It's fairly widely agreed upon that the basic purpose of the law was to provide reassurances to the international community at a time when America was a burgeoning nation, that there would be redress in the United States for violations of international law, right? But what's the exact scope? Does it apply to any violation of international law or only certain laws? Can you sue anyone under it, or does it need to be, for instance, an American citizen?
0:12:29.3 Peter: This has all been debated and litigated in large part because we have very little precise information about the original intent of the law. There's not much legislative history, and the law was nearly dormant for almost 200 years when it popped up in a major federal case in 1980. Since then, there's been a bit of a war between activists who want to read the statute broadly to attack human rights violations and conservatives who prefer, for personal reasons, a narrow theory of liability under the law.
0:13:01.4 Rhiannon: Yeah, this law, the Alien Torts Claim Act, it's passed at a time when there's really a different understanding of jurisdiction, there's a different understanding of courts deciding cases under what's called the law of nations. Like Peter said, the US is a brand-spanking new country that has to establish itself as a legit nation of laws, and there are few famous instances from this time, the 1780s, 1790s, of say, like a foreign diplomat being assaulted in the US, or pirates stealing stuff in international zones. So this law is a recognition of sort of wrongs that need a remedy in jurisdictional gray areas. The first case that Peter mentioned that brought up the Alien Tort Claims Act after it was dormant for 200 years, it's a 1980 case brought by the Center for Constitutional Rights, in which they were suing on behalf of a family of Paraguayan citizens who lived in the US, and they were suing a former Paraguayan police officer for the kidnapping and torture of their family member. And so today, this law offers some space in which to litigate about corporate accountability often, or all the time, really, in international context.
0:14:22.0 Michael: Right. And to Peter's earlier point about how much of this is still being litigated and how this is relatively a new area, one of the questions presented to the court in this case was literally, whether corporations could be sued at all under this statute. It's a question the court declined to answer, because they answered some other more convoluted question instead, but that's the state of the law.
0:14:50.3 Peter: Yeah. Right. And just a couple of years ago, the court held that foreign corporations could not be sued...
0:14:56.6 Rhiannon: That's right.
0:14:57.1 Peter: Under the statute, in a case about a bank aiding and abetting terrorism. So yeah... I mean, a lot of very basic questions are still being answered about this law. Again, this case is about exactly who can be sued under this law, and why these former child slaves are arguing that Nestlé, while not participating in child slavery directly, aided and abetted child slavery by engaging in business with operations they knew were practicing slavery. And Nestlé in turn is saying not necessarily that they didn't facilitate slavery, but that this case doesn't have enough of a connection to the United States for it to be heard by a US court. All of the allegations take place overseas, and the only connection it really has to the US is that these companies have large operations in the US.
0:15:49.7 Rhiannon: Right. And the plaintiffs say also that the decision makers are in the US. The decision makers at Nestlé who are making the choices, controlling how Nestlé gets its cocoa, those people are all making those decisions in the United States.
0:16:07.9 Peter: So the Supreme Court, in an eight to one decision written by Clarence Thomas, agrees with the corporations, holding that there needs to be more of a link between the illegal conduct alleged and the United States. The court says, "Look, all of the allegations of facilitating slavery take place in Ivory Coast. There's nothing specifically tying this to the US, and the fact that there is some general corporate activity in the US isn't enough here." Like I mentioned, this goes eight to one with a somewhat technical dissent coming out of Sam Alito, and the reason it's so uncontentious is that it's pretty clear within the case law, not just about the Alien Tort Statute, but about jurisdiction generally, how situations like this should be treated.
0:16:55.5 Peter: It has long been held in various contexts that you can't bring a corporation to court in a particular jurisdiction for something they did somewhere else, just because they have some operations in that particular jurisdiction. To some degree, this makes practical sense because the reality is that many large corporations have a presence all over the globe and throughout the country, so over time, courts have said that there needs to be reasonable limitations on where you can drag them to court. But the other side of that is that those large corporations are availing themselves of the resources of many different states and countries at the same time, so it makes sense that they should be subject to liability in all of those places, right?
0:17:38.7 Peter: This is a boring area of the law to some degree, but corporations have been hard at work here for years, just hacking away at the avenues through which people can try to take them into court. Again, all the court is saying is, Well, these crimes took place in Africa and not the US, so it doesn't really make sense to handle these in the US civil court, but Nestlé's operation, for instance, is international. They facilitate slavery in Ivory Coast, and then somewhere down the line that manifests in a crunch bar being eaten by some fucking slob at a dying movie theater chain in some God-forsaken suburb, or not.
0:18:12.7 Rhiannon: Hey, that's my family you're talking about.
[laughter]
0:18:19.3 Peter: And those profits roll up to a US corporate entity and line the pockets of US-based executives. And moreover, the plaintiffs here claim that Nestlé in particular, being one of, if not the largest buyer of cocoa on earth, has enormous levels of control over the cocoa market from their perch in the United States. Right?
0:18:39.6 Peter: In other words, there's massive overlap between Nestlé's US presence and the wrongdoing in Ivory Coast, so it stands to reason that they should be held liable. And what corporations have done to get around that common sense argument is claim that the real issue is where the harm occurs. In this case, it occurred in Ivory Coast. And courts have, in recent years, especially, bought this argument, allowing large corporations to use the fiction of the corporate entity and the maze of corporate bureaucracy that no one can see through to create an artificial distance between the people that run the corporations and the crimes being committed at their behest on the other side of the globe.
0:19:22.0 Michael: That's right. Yeah, I guess the thing that enrages me about this opinion, that Peter's getting at here, is just the sheer amount of bullshit in it, just bullshit piled atop bullshit. And when I use that term, I'm using it precisely. There's a Princeton philosopher who has defined bullshit as not caring about the truth, at all, not trying to misrepresent the truth and not trying to reveal the truth, but a total disregard for the truth, and instead, concerned with creating an appearance and pretending these farms that sell exclusively to Nestlé, are subsidized by Nestlé, get their fertilizer and their tools from Nestlé, are somehow legally separate entities from Nestlé. That is bullshit. Pretending that corporate decisions that happen in the US but have impacts elsewhere are actually happening elsewhere, that there's some meaningful distinction between someone deciding something in New York, and it being carried out in the Republic of Cote d'Ivoire, which is the real name of this country that you two ethnocentric assholes...
[chuckle]
0:20:34.1 Peter: I believe it's Le Ivory Coast, is the...
[overlapping conversation]
[chuckle]
0:20:37.5 Michael: That's bullshit. It's bullshit pretending there's any distinction. And finally, deciding to answer this question about extraterritorial application rather than doing what Alito says they should do in dissent and just said, "Yeah, of course, corporations can be sued under the Alien Tort Statute," and sending the rest of it down to the district court to hash out all these questions that they're just assuming, that's bullshit too. It's just an unbelievable amount of bullshit to do what? To protect a massive corporation that is, at the very least, aiding and betting, if not outright engaging, in international slavery. It's disgusting.
0:21:21.4 Rhiannon: Yeah, absolutely. Peter, you made a good point during prep about Nestlé's sort of false distance, they're trying to portray between themselves as the corporation and what's happening on the ground, say, on plantations in Ivory Coast, and actually the amount of control that Nestlé, in reality, exercises. So if Nestlé decided today, We are not going to buy cocoa from plantations that use child slavery, it would go away in Ivory Coast, it would go away. Ivory Coast produces 45% of the world's cocoa. It is the largest export in Ivory Coast. It is what this country's economy is based on really, are these plantations. And so Nestlé being the corporation that, in reality, controls these plantations and controls this country's economy, if they said, "We are no longer buying this cocoa, this product from you, because of the forced labor context," it would change immediately. And so that false distance that they're trying to put between themselves and the plantations or the farm owners, or this is how economies in West Africa just work, whatever that is, it really is, like Michael, you're saying, it's bullshit.
0:22:41.7 Peter: So we mentioned the main decision here goes eight to one. Part of Thomas' decision only gets three votes: Him, Gorsuch, and Kavanaugh. And that is him making this sort of pseudo-originalist argument, there's actually no cause of action here at all, that the Alien Tort Statute should be limited to a very narrow group of claims that would have been considered the pertinent violations of international law back in 1789, like piracy. The things that he thinks the founders were originally concerned with. Sotomayor's response to this is pretty good in her concurrence, and I don't wanna get into it too much but real friendshit going on here and getting three votes when I think, safe to say a decade ago, it would have been Thomas alone.
0:23:22.6 Rhiannon: Yes. Yeah. Yeah. Good point.
0:23:25.1 Peter: So the success of corporations and their fancy lawyers in shaping this area of the law, it obscures just how deeply disgusting some of these cases have been, just sort of dripping with the worst aspects of colonialism. I mentioned that the law was dormant until the 1980s, and Rhi, you had spoken about this, but when it first popped back up, it was being used by the victims of right-wing military violence in Latin America.
0:23:53.3 Rhiannon: Allegedly. [chuckle]
0:23:55.0 Peter: Oh, yeah, sorry. In the '90s, it was used in a case brought by citizens of Myanmar, claiming that Unocal, an American oil conglomerate had engaged in human rights violations while building a pipeline. There was a case about Royal Dutch Shell violently suppressing opposition to oil infrastructure in Nigeria.
0:24:11.7 Rhiannon: Allegedly. [chuckle]
0:24:13.8 Peter: Yeah. Absolutely. A case about the brutal murder of thousands by the government of Papua New Guinea at the behest of a mining company, and I believe using their helicopters, mining company helicopters. Chevron's use of the Nigerian military to murder protesters and Coca-Cola's collaboration with paramilitary forces in Colombia to torture and murder trade unionists, among others. In case you are wondering why Coca-Cola filed that amicus brief, that might be why.
0:24:46.6 Rhiannon: Wait, wait. Allegedly.
0:24:49.7 Peter: That's right. My apologies to Chevron and Coca-Cola. Don't Donziger.
0:24:55.5 Rhiannon: Do not Donziger my friend.
0:24:57.4 Peter: I will not take it lying down like he did. So you can see why this became such a contentious statute so quickly. It was leveraged by activists to attempt to fight against brutal corporate colonialist practices. And those activists were, in turn, met by a marginally less paramilitary wing of those corporations, their lawyers, who have successfully whittled the scope of the law down over the course of the last 40 years to next to nothing.
0:25:27.5 Michael: Right. And it's no surprise that the Alien Tort Statute has had new life just in the last few decades, because the nature and character of America's presence in the world transformed in the latter half of the 20th century. It went from just another nation to an empire, and then the lone superpower. And all of a sudden, our military and our government and our corporations are everywhere and are impacting life everywhere. And so of course, this statute, which may be had different purposes, or a different character, when we were a new nation, has new life, because it's a new world and our country is profoundly different, has a different place on the international stage. But the law is still there. No reason why it shouldn't be available.
0:26:21.3 Peter: So one last thing I wanna mention before we start talking about lawyers. When we talk about jurisdiction, why would a court have jurisdiction in one place and not another? A big part of the reason is that it would make more sense, just practical sense, for the court to handle it in one location rather than another. If a Pennsylvania citizen living in Pennsylvania gets in an accident in Pennsylvania, it doesn't make sense for him to take someone to court in Jersey, most of the time, right? And so it seems like a common sense argument to say that this is really an issue that should be resolved in Ivory Coast because the facts unfolded largely in Ivory Coast. That's important here because the reality of not enforcing these statutes is that a lot of these laws simply won't get enforced at all. Corporations operate in these countries in a shadier manner because they can, because the government in those countries is not capable, or in some cases, willing to regulate them aggressively enough to prevent human rights violations. So when you talk about a United States Court declining to enforce this law, what you're really talking about is them getting away with it, because there isn't another jurisdiction capable of taking this on.
0:27:33.5 Rhiannon: Exactly.
0:27:34.5 Peter: One of the arguments that Neal Katyal and Nestlé make to the Supreme Court was like, Look, there are other laws that we can bring in if we need to hold Nestlé accountable here. There's criminal laws, for example. There might be other civil laws that we could use, so we don't need this one necessarily. But what's actually happening is that Nestlé is doing its best to steadily whittle away the available avenues of redress that these plaintiffs have, and they won't be satisfied until there are none left.
0:28:02.7 Rhiannon: So we should turn to Neal Katyal himself, the lawyer who argued on behalf of Nestlé, his client, in front of the Supreme Court, and maybe just opine on the hollowness of the lawyer's soul today. Everybody knows I went to law school to do public interest, and I'm a public defender now, but I have a lot of strong views, I think, about what it means to be a lawyer, to do legal work, and to do good in the world. And this case reminds me of what we say all the time about the interpretation of laws when we're criticizing like textualism or originalism, or whatever, that interpretation of a law or interpretation of the constitution without historical context is a really intellectually and morally hollow undertaking. And the same is true, I think, for the individual practice of law and lawyers. Being a lawyer is not morally correct on its own, being a lawyer by itself is not doing good in the world. Arguing cases in front of the Supreme Court does not make you a good person, and there's individual choice, and there's crucial context in these decisions, in the decisions that lawyers make about the work that they do, the cases that they take and who they represent.
0:29:23.5 Rhiannon: Doctors, that's another profession. They do good, they protect people, but Nazi doctors at concentration camps who tortured and experimented on Jews during the Holocaust, they're not good doctors just because they were working for the government at the time, and that was a real elite position. And so I think that the individual kind of choices of lawyers about the work that you pursue in the law has really been abstracted, I think, from the context in which you're doing it, the area of law that you're practicing in. Neal Katyal himself, he's known as a liberal guy. This is the most successful appellate lawyer probably in the country, you might wanna argue with me about that, but Neal Katyal is writing pieces in the New York Times, Neal Katyal has been in front of the Supreme Court multiple times in his career, and is a partner at a hugely successful big law firm, and these are the cases at this point that he's taking. These clients, Nestlé, one of the most evil corporations in the world, is who he is arguing for and representing, and the argument that you are doing good lawyer work just because you are zealously advocating on behalf of your client is I think just as intellectually and morally hollow as saying the Constitution only means what it meant in 1780.
0:31:06.3 Michael: Yeah, no, I think that's exactly right. I think that's really well stated, that practicing law is not inherently moral, and in fact, you can be pretty morally bankrupt in your career.
0:31:20.5 Rhiannon: So turning to public dialogue, when this case was argued at the Supreme Court, Peter, you mentioned up top that people were pointing out like, Wait a second, Neal Katyal is arguing on behalf of Nestlé? Isn't that morally repugnant? And the other side of the garbage lawyer brain trust in this country responds by saying, Well, the duty of a lawyer, a lawyer is doing a good job when they zealously advocate for their client. That's what you were supposed to do. Sometimes as a lawyer, you have to represent unpopular clients. And the point is, is that you are arguing and advancing the law, that that's the duty, that engaging sort of intellectually arguing on behalf of somebody zealously that that is what the practice of law is.
0:32:14.7 Peter: Yeah, if Rhiannon is our podcast purist soul, maybe I can speak a bit on this as someone who did not do public interest work, but instead mostly just chased money after law school. There's this saying on the left that there's no ethical consumption under capitalism, or that there is no such thing as ethical participation in capitalism. The idea is that you cannot exist in an unethical system without in some way contributing to that system, right?
0:32:41.1 Rhiannon: Sure, yeah.
0:32:42.3 Peter: And the point is not just to highlight the pervasiveness of systemic problems, but to make it clear that, for example, a barista should not be blamed for taking a job at Starbucks, just because Starbucks sucks as a company. Capitalism presents you with tough choices, and I wanna talk about those choices a bit. If you're a first year big law associate with $250,000 worth of debt and someone throws a case for Nestlé on your desk, you might be choosing between taking the case and having to find a new job.
0:33:12.7 Peter: Now, you can make a strong moral case against going into big law, I think, absolutely. But we can all agree that law students aren't being presented with the greatest set of choices, right? But if you are Neal Katyal or a similarly situated elite appellate attorney, you do have choices. These are multi-millionaires with established reputations. He could choose to dedicate the rest of his life to representing indigent clients, if he wanted to. He wouldn't even have to sacrifice prestige, right? He could work for prominent civil rights organizations. He is not a victim of circumstance or systemic pressure. This is a man with tremendous personal and professional freedom, who is choosing to help Nestlé fend off liability for facilitating child slavery. That is a choice, that is not a circumstance in which he was placed. That is a position that he has been seeking and where he finds himself, due to a series of very deliberate choices.
0:34:17.6 Michael: That's right. And you better believe if his choices were to represent Guantanamo Bay detainees, and then he came up for a judgeship that that would be held against him at his confirmation hearing. It's like, absolutely, there are certain unattractive defendants that absolutely could haunt someone's career. But there is a sense that big wealthy corporations shouldn't rank among those because these corporations fund most of the legal industry.
0:34:51.2 Rhiannon: Yeah. Obviously. As a public defender, I hear this a lot about, "How do you represent those people? How do you sleep at night representing people who commit crimes?" There's obviously the stereotype, widely known, of like the skeezy and amoral, if not immoral, criminal defense attorney. Representing unpopular clients is not what we're attacking here. But again, the point is about context, about who needs zealous advocacy, about what constitutional principles or legal principles are being advocated for when you represent an unpopular client. Without the public defense bar, without criminal defense attorneys, without the people who take death penalty cases to the Supreme Court, for instance, where are our civil rights? Where is your access to courts and due process in the criminal legal system? But on the other hand, without the Supreme Court bar, without Neal Katyal, where's Nestlé in this case? Who needs the zealous advocate? The material reality is that some people need the legal help and Nestlé does not. Nestlé has the resources. Nestlé does not need the best appellate attorney in the country arguing on their behalf.
0:36:16.8 Peter: What prevents you, our listener, our law-abiding listener from being jacked up by some fucking cop is some attorney, who at one point took up a Fourth Amendment case on behalf of someone who you might think is a scumbag. That is what prevents you from getting your rights fucked with.
[chuckle]
0:36:36.5 Peter: This law is about violations of international law and where they can be enforced. Let me know when that intersects with your life.
0:36:48.7 Rhiannon: Right? Exactly. [laughter]
0:36:50.4 Michael: When you transform into a massive international corporation, it's gonna be really relevant to you.
0:36:57.5 Peter: Or when you eat a piece of Nestlé chocolate.
[laughter]
0:37:02.0 Peter: Last year when this all went down, SCOTUSblog, a legal media organization/cartel that generally just sort of publishes factual information about Supreme Court cases, took a rather public stance on Twitter and elsewhere about this issue. They published an article about the dangers of confusing attorneys with their clients. Published by an attorney named Tom Goldstein, who I looked up and the first sentence was like, Tom is representing Google before the Supreme Court this fall.
0:37:38.5 Rhiannon: Amazing. We're just...
0:37:40.1 Peter: Congrats Tom.
[laughter]
0:37:43.1 Peter: I'm gonna give you a couple of quotes from him. First one, "I start from the idea that our legal system is premised on clients having the best advocacy, so that courts will make the best decisions. That is a proposition that the American left, which prides itself on standing up for the powerless, including criminal defendants, treasures, but nonetheless, that principle sometimes gets lost in a drive for ideological purity." Okay, so it is true that we adhere to the principle that all people should have the best advocacy, but principle is not the operative word here, because the material reality is that not everyone does have the best advocacy. And people like Katyal are choosing to represent the Nestles of the world, rather than someone else. If you have to situate your choices in a fictional paradigm where everyone has equal representation for your point to be correct, then maybe it is not actually correct.
0:38:42.6 Rhiannon: And this so-called "Drive for ideological purity", right? I just... Again, taking a step back and looking what the facts are here and what legal question is presented by this case, you're talking about child slavery, you're talking about facilitating it, you're talking about profiting off of it. And so, I'm not trying to be an ideological purist by saying that keeping for these people and keeping for this system is morally abhorrent.
[laughter]
0:39:12.8 Peter: Yes. It's not really purity, just not complete disgusting filth is what...
0:39:17.4 Rhiannon: That's right. Yeah.
0:39:18.8 Peter: What I would prefer. I did securities litigation for a few years, alright. I am not requesting purity. I do believe that child slavery is a line that a reasonable person could draw.
0:39:28.7 Rhiannon: That's right.
0:39:29.3 Michael: And I think it's also important to note that nobody's saying Nestlé should be denied counsel, right? Or even that Nestlé shouldn't be allowed to pay a lot of money for expensive counsel. Although, maybe it should be that way. But the main point is just that if you have options and you use those options to defend Nestlé about its facilitation of child slavery, maybe, just maybe, that should impact people's view of you, that your reputation should maybe be sullied by that, that the public esteem you hold should maybe be lowered. That's the proposition here. People should acknowledge that Neal Katyal's a scumbag. That's it. That's it.
0:40:13.4 Peter: I have another quote from this article.
[laughter]
0:40:16.1 Michael: Yes.
0:40:17.6 Rhiannon: Great.
0:40:18.8 Peter: "Katyal is one of the most prominent progressive lawyers in our country over the past four years. He just happens to work for a corporate law firm with its corporate clients."
0:40:29.7 Rhiannon: Just happens. Just happens.
0:40:31.1 Michael: Just happens.
0:40:34.4 Peter: Just happens.
0:40:34.6 Rhiannon: It was a coincidence.
0:40:34.9 Michael: Whoa!
0:40:35.0 Peter: From the womb.
[laughter]
0:40:38.5 Rhiannon: I had no control, I got air-dropped in here and I can't get out, I'm just like the child slaves, they're not giving me directions on how to get out of here.
0:40:46.4 Michael: It's like what's his name? Gregor Samsa, right? You woke up one day and you worked for a corporate law firm. [laughter] What?
[laughter]
0:40:57.2 Peter: There's something like so bizarre... Again, we're talking about someone who heads up the most prominent esteemed appellate law practice in the country. It's not just that they don't have to represent corporations or something, they are being asked by an army of different corporations, just one after another are lining up at their doors, "Please take our case." They've got clients who desperately want them 'cause they're an insanely prestigious practice. They are declining at least a dozen to take on Nestlé's child's labor case. At least.
0:41:33.0 Rhiannon: Yes.
0:41:33.2 Michael: Absolutely.
0:41:33.2 Peter: At least. They want that Nestlé money, so you can stack that sort of corporate choice, the choice of the firm on top of Neal Katyal's personal choice to be there and situate himself in a corporate law firm, representing giant companies before the Supreme Court. It's a choice that he's making personally, and it's a choice that they are, as a law firm, making to pursue this type of case.
0:41:56.6 Michael: Right, and I think that should also... We should be allowed to judge law firms on that. Oh, that's the law firm that jumped at the chance to represent Trump when he's suing to overturn the election, they're pieces of shit. You should be able to say that. We should have value judgments. It's okay for people to have morals and to judge others about their blatant disregard for morals and values. You know?
0:42:24.7 Peter: Yeah, that's a good comparison because a lot of the same liberal institutionalists who were defending Neal here were not defending Rudy Giuliani and Sidney Powell last year when they were running some apeshit campaign to overturn the election. And what's the real difference? From a morality perspective, they're both pretty shitty evil cases to bring. The only real difference is confidence. Giuliani and Sidney Powell are fucking morons who couldn't bring a real viable case to save their lives, and tried anyway. And Neal Katyal is all in all a pretty good, successful attorney. That's the difference.
0:43:00.3 Michael: Right. Right. And there were plenty of these institutionalists calling for them to be disbarred or sanctioned, but if you're really looking at those cases, Trump trying to overturn the election and related lawsuits and being the main problem here is bad lawyering, you fucking lost it, man. It's not a battle for your soul, you gotta go find your soul 'cause it's gone, it's outta here.
[laughter]
0:43:32.6 Peter: These people just sort of... At least in cases like this one, they place lawyers in this entirely passive role, where we are just sort of cogs in this machine and someone turns the lever and we go. And it's just not how the practice actually works, it's not how power actually works. It's not reflective of the nuances of the choices that lawyers make, and when you exit law school, you might choose to weigh yourself down with the debt and go a public interest route, and I think it's pretty safe to say that that's a more amoral choice than going into a big law firm, even if going into a big law firm is, to some degree, understandable. I think we have to be able to admit that, and I think when you go further down the line and you start talking about wealthier people with more and more options, you should start to allow yourself to criticize them for making the decisions that they do. They have options, they are turning down one road and not another. And it's absurd to think that Neal Katyal has found himself, by a force of nature, in front of the Supreme Court arguing for fucking Nestlé about child slavery in Africa. That is not what happened, and it's insane and amoral to pretend that he is not at all responsible for those choices.
0:44:55.2 Michael: At the end of the day, I think the most simple way I can put it is that the most wealthy, powerful, successful lawyers should not be above criticism for what they decide to do with their wealth and power and prestige. That's a very simple statement, and it's wild that it's even controversial in the legal industry.
0:45:15.0 Rhiannon: Yeah, and that's to say nothing of the influence, the sort of public ear that Neal Katyal has. Like I said, he's writing in major publications, he's on TV talking about the law, talking about Supreme Court cases. If Neal Katyal makes a different choice here, if Neal Katyal turns his career to representing different clients, say indigent clients or tenants or... You know what I mean? Anybody, migrant workers, right? The massive impact that that has on the profession, it can't really be overstated, but instead, he is just like Nestlé is, putting distance between themselves and the on-the-ground realities, on-the-ground horrors that they are facilitating and profiting off of. Neal Katyal is doing the same thing by ambiguating... Is that a word?
0:46:06.7 Peter: Probably.
0:46:08.7 Rhiannon: Disambiguating is a word.
0:46:08.9 Peter: If disambiguating is a word, ambiguating...
0:46:10.8 Michael: You could say muddying the waters.
0:46:13.7 Rhiannon: Muddying the waters.
0:46:14.5 Peter: Ambiguating the water.
0:46:18.2 Rhiannon: Katyal is doing the same thing by muddying the waters about the power and choice that he has when taking cases.
0:46:25.1 Michael: Right, and to loop back to the comparison to the Trump lawsuits, one of the reasons why Trump had incompetent counsel is precisely because a lot of law firms refused to work for him.
0:46:38.0 Rhiannon: Good point.
0:46:39.8 Michael: Going back to 2015 and 2016 in the first election, there were firms turning him down because he was toxic, so he got left with some of the worst big law firms. And Nestlé could be in that position too, if those law firms had any real principles, but Nestlé isn't as PR toxic as Trump, and so it's much easier to take them on as a client.
0:47:07.3 Peter: Right, and I think, Rhi, you made me think of just what someone like Neal Katyal could do with his sort of sway in the profession. If he said, "I'm gonna go raise money and start an organization that focuses on tenants rights," or whatever it might be, could shift millions and millions of dollars, it wouldn't affect his personal life at all. He's extremely wealthy, and would A] Do actual good, B] Create infrastructure for doing good in a ongoing basis, and C] Maybe show young lawyers and law students that there is a viable alternative path, that you don't have to do this sellout shit. That would have been something that would have been useful for me to see. Right?
0:47:49.0 Rhiannon: For sure. Yeah.
0:47:52.3 Michael: Absolutely.
0:47:52.9 Peter: And the reason I brought up he could go to the ACLU or whatever is because it is wild to me to think that there's someone out there worth... I don't know, I keep saying he's very rich. If I had to guess, $10 million plus is his networth, right?
0:48:04.5 Rhiannon: Sure. Yeah. That's believable.
0:48:05.9 Peter: I cannot fathom having that money and wanting to work very hard in appellate litigation and not working for a civil rights organization. It really is mind-boggling to me how you could possibly be drawn to representing corporations who are being accused of human rights abuses when those are the options being presented to you, where you could be fighting against real injustice in this world and live a beautifully comfortable life. To go down this road, it's a sign of just absolute sickness in the [0:48:36.7] ____ and a diseased profession that insulates lawyers from the decisions that they make and tells them that, "You're doing great." It's not you, this is the system, and you are simply within it. To build off of what you just said, Michael, it's important to publicly speak about this stuff, just to get it out there and make the case to younger lawyers especially. But also I think there's a real utility to calling out lawyers like Katyal for the reason that you just pointed out, the imbalance of power between the corporate defense bar and others is because money and prestige is concentrated there. If there was a vocal group of people calling them out, that is more than just expressing our views in public, it's shifting the prestige away from them, and over time, hopefully re-balancing power away from those corporate clients and towards other people, other institutions who desperately need it.
0:49:34.0 Michael: That's right.
[music]
0:49:37.9 Peter: This one's emotionally exhausting for me. Next week, a very special episode about law school.
0:49:48.1 Rhiannon: It's starting.
0:49:49.2 Peter: Law school is kicking off. The semester is about to begin. We thought it would be useful to do an entire episode about what is wrong with law school. And although that would usually be a locked premium episode, we have to give this one to the people. So it'll be a free one.
0:50:08.1 Rhiannon: All you sick, sad 2021 1Ls.
0:50:10.7 Peter: And if you are a 1L, taking on hundreds of thousand of dollars of debt, why not take out an extra $5 a month? Pop that over to 5-4. Follow us on Twitter @fivefourpod and hit us up on Patreon to subscribe and get all the premium episodes and other benefits, patreon.com/fivefourpod, all spelled out. We'll see you next week.
0:50:37.1 Michael: Bye, everybody.
0:50:37.8 Rhiannon: Bye.
0:50:39.2 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percia Verlin. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.