Negotiating the Terms of Corporate Human Rights Liability Under Federal Law

This Article first addresses, by way of example, questions of mens rea, or required mental states, through the basic purposes and relevant assumptions underlying general tort and criminal law. Whichever approach the law adopts, with or without negotiation, toward corporate aiding and abetting liability in human-rights-oriented torts cases should at least be generally compatible with these basic purposes and assumptions. Next, this Article addresses several possible approaches to the mens rea issues before adopting a model of negotiation or bargaining bounded by general moral constraints. Secondly, this Article discusses a number of issues associated with the Alien Tort Statute ATS in case context.

From the perspective of this statute and case law, the Article briefly considers issues of mens rea in general and in context; criminal and tort intention, knowledge, and foresight; multinational corporate, subsidiary, or contractual partner liability; various forms of aiding and abetting or accessory liability; and the scope of extraterritorial or distinctly foreign applicability of the ATS in egregious human rights cases. These considerations are then synthesized in a brief concluding section.