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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

Michael Barsa


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

Abstract:     
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, K39

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Date posted: November 21, 2010 ; Last revised: December 15, 2010

Suggested Citation

Dana, David A. and Barsa, Michael, 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 (November 16, 2010). Fordham Environmental Law Journal, Forthcoming; Northwestern Law & Econ Research Paper No. 10-29; Northwestern Public Law Research Paper No. 10-84. Available at SSRN: http://ssrn.com/abstract=1711934

Contact Information

David A. Dana (Contact Author)
Northwestern University - School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States
312-503-0240 (Phone)
312-503-2035 (Fax)
Michael Barsa
Northwestern University -- School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States

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