What can 23 Liberian children teach us about political gaffes?

(warning: light satire)

First and foremost, they have never made a politcal gaffe while campaigning for the Republican nomination in Iowa.  But that’s because they are Liberian.  And Children.

Non-Liberian non-child Mitt Romney, on the other hand, made a fairly big one last week.  As you probably remember, he said that “corporations are people,” giving the talking heads something to talk about other than the supposed importance of the Ames Straw Poll. 

Statements like these get evaluated through the lens with which we already view the candidate, and there couldn’t be a worse thing to come out of the mouth of a CEO type like Romney.

Romney, whose statement was no doubt inartful and an easy target, isn’t exactly wrong, either.  Corporations, while not “people,” are “persons” in the eyes of the law, able to make contracts, own property and exercise free speech.

But what if Romney was talking about the Alien Tort Claims Act?

This is where the Liberian children come in.  In, Flomo v. Firestone Natural Rubber Co., No. 10-3675, — F.3d —, 2011 WL 2675924 (7th Cir. 2011), they sued Firestone, a subsidiary of which owns a large rubber plantation in the country, under the Alien Tort Claims Act for alleged forced child labor.

In upholding summary judgment in favor of the defendants Judge Richard Posner summarizes:  

[Firestone’s] first argument is that conduct by a corporation or any other entity that doesn’t have a heartbeat (we’ll use “corporation” to cover all such entities) can never be a violation of customary international law, no matter how heinous the conduct.

ATCA covers torts “committed in violation of the law of nations,” which, in absence of statute, The Pequete Habana says are “the customs and usages of civilized nations.” 175 U.S. 677, 700 (1900). See also Sosa v. Alvarez–Machain, 542 U.S. 692, 734 (2004) (quoting The Pequete Habana).

Those “customs,” claims Firestone, do not include the prosecution of non-flesh-and-blood people.  If there have not been any prosecutions, then “no customs and usages” have developed that would make anything a corporation does a violation of the law of nations. 

Why have there been no prosecutions?  Because there is no internationally recognized standard with which to prosecute them.  That’s because there have not been any prosecutions.

And so on. 

This is the law in the 2d Circuit. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir.2010). It’s a simplification to be sure, but certainly a way to look at it.

If Kiobel is right, Romney was wrong.  Corporations are not treated as people for the purposes of international law.  They’re super-people with special court-repelling powers.

But Posner isn’t on board with Kiobel. He points out that there have been international law prosecutions against corporations, notably the post-WWII dismantling of several German companies integral to the Nazi war effort.  More generally, corporations are subject to criminal law and strict liability for torts committed by employees in the course of their employment.

For good measure, Posner adds:

And if precedent for imposing liability for a violation of customary international law by an entity that does not breathe is wanted, we point to in rem judgments against pirate ships. E.g., The Malek Adhel, 43 U.S. (2 How.) 210, 233–34 (1844); The Marianna Flora, 24 U.S. (11 Wheat.) 1, 40–41 (1825). Of course the burden of confiscation of a pirate ship falls ultimately on the ship’s owners, but similarly the burden of a fine imposed on a corporation falls ultimately on the shareholders.

So Posner’s view of the corporation is a bit closer to Mitt’s.  Corporations are people too.  So are boats.

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About Charles Donefer

I am an attorney in New York City.
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