The essay is well worth reading. The object of the essay is a critical analysis of Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010). Slawotsky argues
Given prior precedent, Kiobel ‘s holding is startling. But even more troublesome is that, taken to its logical conclusion, Kiobel arguably holds that corporations can conduct business any way they deem proper without concern of liability under the statute. In light of this, there are several compelling reasons for finding that corporations should be liable under the statute.
First, there is nothing to indicate that corporations were excluded by the statute. All available evidence indicates that, to the contrary, corporations were always envisioned as part of the class of potential ATS defendants. Second, the zealous reliance by Kiobel on the Sosa footnote is misplaced. The footnote does not stand for the proposition that federal courts should examine international law to find whether a class of defendants, such as corporations, can be sued under the statute. Rather, the Supreme Court simply articulated that international law should be examined to determine whether the type of misconduct at issue can be allocable to various actors, such as public or private entities.
Third, international law does not mandate the manner of its enforcement; such mechanisms are reserved for the individual states to implement.
Fourth, the Kiobel court‘s reliance on international criminal rulings to prove corporations are not liable under international law is misplaced, as criminal law is fundamentally different from civil tort law.
Fifth, international law unquestionably protects corporate rights and, therefore, corporations should be subject to obligations.
Sixth, the view that international law is applicable only to "states" is not an accurate reflection of our globalized world. As states increasingly outsource their functions to businesses, corporations are beginning to fulfill traditional "state" roles. This change has led to a blurring of the once sharp public/private distinction.
In today‘s world, both states and corporations have similar or even identical interests. This coalition of interests underscores the blurring of the distinction between states and corporations. Given the reality of corporations being wealthier than states and the blurring distinction between states and corporations, the failure to impose obligations upon corporations because corporations are distinct from states is no longer valid.Slawotsky, supra, at 41. This is absolutely correct.