Legal Mechanization of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response to Professor Branson with Some Supplemental Thoughts

Courts continue to struggle with theories of liability for corporations under the Alien Tort Statute (“ATS”) (a/k/a Alien Tort Claims Act (“ATCA”). Recent cases like Kiobel (2d Circuit, 2010) and Doe v. Exxon Mobile (DC Circuit, July 2011) have raised issues of whether corporations can be sued at all under the ATS, illustrate that issues about corporate liability under the ATS continue to percolate within the judiciary.Written in early 2010 and just published in July 2011, this Response essay argues that as Alien Tort Statute jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must affirmatively go to help right the perceived wrongs in the world in which they operate. Although these questions could be posed simply as ones of policy or morality, with the injection of the ATS into the discussion they become questions that must be answered by examining the dictates and limits of law. Every expansion of liability, whether it is in terms of the persons or entities who may be sued or the nature of claims recognized as creating legal obligations, should be viewed cautiously. In our zeal to “right every wrong,” we should not lose sight of some fundamental principles of corporate law and the limits of the judicial process that are at risk as the ATS liability net widens.