Three Obstacles to the Promotion of Corporate Social Responsibility by Means of the Alien Tort Claims Act: the Sosa Court's Incoherent Conception of the Law of Nations, the 'Purposive' Action Requirement for Aiding and Abetting, and the State Action Requirement for Primary Liability
David A. Dana
Northwestern University - School of Law
Northwestern University -- School of Law
November 16, 2010
Fordham Environmental Law Journal, Forthcoming
Northwestern Law & Econ Research Paper No. 10-29
Northwestern Public Law Research Paper No. 10-84
The ATCA could be a powerful tool to promote corporate CSR, especially in developing countries where local legal restraints are weak. But despite the good normative reasons why the ATCA should be used in this way, serious obstacles remain. The Supreme Court’s ahistorical and incoherent formulation of the law of nations fails to promote the development of the ATCA in ways that would cover even serious environmental harm. Also, the federal courts’ confused jurisprudence concerning aiding and abetting and state action creates too many loopholes through which egregious corporate behavior may slip unpunished. In order to overcome these obstacles, we argue that the law of nations should not be read so restrictively, that a purposive aiding and abetting standard should be adopted, and that the requirement of state action be minimized or eliminated altogether. These steps would go a long way toward promoting the very CSR considerations that many corporations involved in ATCA litigation have already espoused.
Number of Pages in PDF File: 50
Keywords: Alien Tort Claims Act, Liability, Jurisdiction, Sosa
JEL Classification: K10, K30, K33, K39Accepted Paper Series
Date posted: November 21, 2010 ; Last revised: December 15, 2010
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