(Pix © Larry Catá Backer 2016)
Several months ago I posted a draft syllabus for a new course on Corporate Social Responsibility (Corporate Social Responsibility Law--A Tentative Syllabus). To the many who provided feedback, my most appreciative thanks.
I am now happy to report that the course has been approved on a temporary basis at the School of International Affairs (at some point soon I will have to undertake the process of seeking course approval through the Graduate School at Penn State). The law school is currently considering an application seeking law school course approval. More on that as information becomes available.
I am pleased to share with you the last version of my CSR syllabus. This will be the basis for the first test run of the course. I am trying a couple of new things. This year I will try to teach the course as a modified syllabus. The course will revolve around problems for which the readings will serve as a resource. I want to avoid thew excruciating march through readings but also drive home their relevance to students. Second, I will offer students the choice of a take home final or a final paper. I hope they choose the paper. For each paper, the student will be assigned an apex multinational enterprise and work through the MNE's sources to undertake an analysis of their CSR and BHR internationalization. My hope is that this exercise will provide an incentive to dig deep into both primary and secondary sources in a useful way. But we will see. I will report periodically on how the course goes--the good, the bad, and the ugly. Stay tuned.
I am now happy to report that the course has been approved on a temporary basis at the School of International Affairs (at some point soon I will have to undertake the process of seeking course approval through the Graduate School at Penn State). The law school is currently considering an application seeking law school course approval. More on that as information becomes available.
I am pleased to share with you the last version of my CSR syllabus. This will be the basis for the first test run of the course. I am trying a couple of new things. This year I will try to teach the course as a modified syllabus. The course will revolve around problems for which the readings will serve as a resource. I want to avoid thew excruciating march through readings but also drive home their relevance to students. Second, I will offer students the choice of a take home final or a final paper. I hope they choose the paper. For each paper, the student will be assigned an apex multinational enterprise and work through the MNE's sources to undertake an analysis of their CSR and BHR internationalization. My hope is that this exercise will provide an incentive to dig deep into both primary and secondary sources in a useful way. But we will see. I will report periodically on how the course goes--the good, the bad, and the ugly. Stay tuned.
COURSE SHORT DESCRIPTION:
This course provides an introduction to the law and policy of corporate social responsibility (CSR). The focus is on CSR (1) as a subject of legal regulation within states, (2) as a matter of international law and compliance beyond the state, and (3) as a tool and methodology for privatizing regulation through the enterprise itself operating in global production chains. The emphasis is on the study of the legal and regulatory frameworks. These frameworks include those existing and emerging within states, in international institutions, and within production chains and the apex corporations that manage them. The course begins with issues of definitions and of variations in approaches to legal and other governance mechanisms in the U.S. and among major commercial jurisdictions. It then turns to the existing law of CSR, focusing specifically on charitable giving and disclosure regimes. It then considers the rise of CSR regulatory regimes as privatized law making that uses the mechanisms of contract to regulate conduct throughout a production chain. It then considers the emergence of international standards as they inform regulatory efforts in states and enterprises and as normative standards in their own right. It ends with a consideration of key trends and developments going forward.
STATEMENT OF LEARNING OUTCOMES AND ASSESSMENT
Learning Outcomes:
Students are expected to
acquire a working knowledge of the following.
1. Identify the legal
framework within which the regulation of corporate social responsibility is
framed within the United States, within international organizations, and among
corporate actors.
2. Examine the
relationship between corporate law in states and corporate social
responsibilities, understanding their overlap and distinguishing scope.
3. Demonstrate
familiarity with the legal regulation of CSR in the United States and selected
other states, with a focus on the law of charitable giving and the emerging
disclosure and reporting laws
4. Demonstrate
familiarity with third party certification frameworks.
5. Identify the
structures, legal and regulatory effects of corporate CSR self-regulation
systems.
6. Demonstrate
familiarity with the substantive content and application of a selection of
international normative standards such as the 2011 United Nations Guiding
Principles for Business and Human Rights, and OECD Guidelines for Multinational
Enterprises, among others.
7. Develop a working
familiarity with the U.S. Alien Tort Claims Act and its relevance to CSR
related litigation.
8. Identify the relationship between CSR
regimes and the regulation of corruption, enterprise liability and
environmental sustainability objectives.
9. Consider the role of fiduciary duty and
monitoring and due diligence obligations of enterprises in light of changing
jurisprudence.
Learning Outcomes Assessment:
Student achievement in all learning outcomes will be measured in a final examination that may be undertaken in one of two ways. Students may choose to (1) take a 24 hour take home final examination, or (2) submit a paper. Learning Outcomes will be monitored through student participation in the weekly discussion of problems that build on readings.
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COURSE MATERIALS
The course consists of cases, primary source
materials and secondary sources of relevance to the subject of instruction for
each class session. These will be
provided through CANVAS. Additional materials will be made available on
occasion as appropriate. Please bring
assigned reading to class.
COURSE INFORMATION AND RULES
Course meetings time are set out above. I am generally available to talk with you during office hours on Mondays and Wednesdays, or, otherwise, by appointment. I am also available via e-conferencing (e.g., Skype and Zoom).
ATTENDANCE, SEATING, AND CLASS PARTICIPATION
School rules require me to notify students of my attendance policy. Class attendance is required. I take attendance seriously. You will be required to sign in at each class session via our electronic class system. Attendance will be taken through Canvas. At the start of each class session I will provide you with the attendance code necessary to mark yourself present.
You are responsible for marking your own attendance.
Students with more than four (4) unexcused absences can have their grade lowered one full grade (from A to A- for example) at my discretion.
Class participation is required. All students are expected to be prepared for each class session (that is, to have carefully read the material assigned). All of you will find yourselves participating in at least some of the discussion. At the end of each class I may designate one or more students as class participation leaders for the next class. I reserve the right to call on students at random. Outstanding participation may result in an increase in your grade, again at my discretion.
Seating is assigned. You will be asked to fill out a seating chart during the second day of class.
My approach to class: The principal object of the class is to develop knowledge through discussion in class. That discussion will be framed by the problems and informed by the readings. There is no expectation that one has the correct answer. The expectation is that students will contribute to a discussion that I will guide as necessary to achieve our learning outcome objectives. That means that sometimes you will have an opinion or produce an insight with respect to which there may be objection or disagreement. Disagreement is not disrespect. I expect that through lively discourse the class will be able to learn better. Please let me know if you have questions.
CLASS NOTES AND RECORDING OF CLASS
Class Notes and Recording of Class. Take notes as you like. Please feel free to get together with your classmates for studying and sharing notes. Please remember that the purpose of the course is NOT to provide experience in stenographic techniques. Participation rather than the taking of dictation is encouraged. To that end, all of my classes are recorded and you are encouraged to review those recordings at your convenience.
No personal recording of class.
In order to provide the potential educational
benefits of recorded classes to our students, the SIA has decided to
automatically record, and to archive for a limited period of time, all class
sessions occurring in classrooms in the Katz Building. The purpose of the
recordings is to permit students enrolled in each recorded course to
access the recordings outside of the regularly scheduled class period,
according to rules established by the professor.
Access to recorded classes will be controlled via a secure course
management platform, such as ANGEL, and will be restricted to students
enrolled in the recorded course, the professor, and those University IIT
personnel necessary to maintain the system. All recordings will be
deleted following the conclusion of the semester in which the recorded course occurs
(unless all identifying student images are edited out of the recording, in
which case the professor and SIA may jointly decide to retain the edited
recording for other purposes).
By registering for or attending SIA
courses, you consent to the school’s making and display of class recordings
within the scope of this policy.
Your
professor in each course will explain the access rules she or he has
established for each class.
PLEASE
NOTE that the SIA’s class recording policy is not a substitute for class
attendance and preparation, which still is required for all class sessions
(unless excused by the professor on an exceptional basis for good reason) and
in order to remain in good academic standing with the SIA. The class
recording policy is intended to enhance your learning experience, not to
substitute for regular class attendance and preparation.
Questions,
Special Requests.
You should direct any questions, concerns or requests specifically
regarding classroom recordings or any classroom technology (rather than policy
or the interpretation thereof) to the AV Team at av@law.psu.edu.
GRADING
Students will have a choice among two options for determining their course grade. Either they may sit for a 24 hour take home exam OR they may submit a paper. Each is described in more detail below:
PAPER OPTION: Students will submit a paper that shall be no less than thirty (30) pages, double spaced 11 point Times Roman Font, excluding footnotes. There is no maximum page length for papers. Each paper will consist of a detailed analysis of the CSR, human rights and sustainability practices of a selected company, with reference to the materials covered in class. It is expected that each paper will provide a detailed study and analysis of the CSR practices of the selected enterprise for a period of no less than five (5) years. The student may select from a list of companies to made available to the class from the first week of instruction. It is expected that in addition to the materials considered in class, the student will access written primary and secondary sources primarily on line or through our library. Papers must adhere to the Regulations Governing Papers Submitted for Course Credit. The paper must be delivered no later than 3 P.M. December 20, 2017 .
EXAM OPTION: THE EXAM IS OPEN BOOK. You must work alone. You will have 24 hours to complete the exam from the time you pick it up. Students will be given the option of choosing the time you take the exam. The exam may be picked up on any day from the first day of final exams to 3:00 P.M. on the last day of the final exams period (December 11, 2017 through December 15, 2017).
Exams will be distributed through CANVAS and will be submitted through CANVAS. More detailed instructions will be made available later in the semester. EXAMS MUST BE SUBMITTED NO LATER THAN 24 HOURS AFTER PICK UP. The Clock in CANVAS WILL BE TREATED AS PRESUMPTIVELY ACCURATE. I will not police you – you are on your honor to comply with final exam rules.
ANY EXAM DELIVERED AFTER 3 P.M. ON DECEMBER 15, 2017 OR MORE THAN 24 HOURS AFTER PICK UP WILL RECEIVE A GRADE OF “F”.
The awarding of grades is based on the curve system adopted by the faculty of the Law School and is subject to the limitations of those curve rules. The Grading Norms may be accessed HERE. I will adhere to this system. Students interested in discussing the curve system itself, its wisdom, or making proposals with respect to the system, are advised to consult their academic dean.
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ACADEMIC HONESTY AND INTEGRITY
Both Penn State Law (PSL) and the School of International Affairs (SIA) safeguard and promote the ideals of honor and integrity by prohibiting lying, cheating, stealing, and other dishonorable conduct. Accordingly, all students should act with personal integrity, respect other students’ dignity, rights and property, and help create and maintain an environment in which all can succeed through the fruits of their efforts.
Dishonesty of any kind will not be tolerated in this course. Dishonesty includes, but is not limited to, cheating, plagiarizing, fabricating information or citations, facilitating acts of academic dishonesty by others, having unauthorized possession of examinations, submitting work of another person or work previously used without informing the instructor, or tampering with the academic work of other students. Students who are found to be dishonest will receive academic sanctions and will be reported to the relevant authorities for possible further disciplinary sanction. For an explanation of what types of conduct constitute plagiarism, see the definition of plagiarism in the Law School Honor Code section 1.2 (R) at http://www.law.psu.edu/Honor/Contents.cfm.
See also http://istudy.psu.edu/FirstYearModule/CopyrightPlagiarism/StudentGuide.htlm and http://its.psu.edu/turnitin/TurnitinHandout.rtf.
All acts of academic dishonesty will be dealt with and punished in accordance with applicable Penn State University, Penn State Law, SIA and Graduate School policies, as applicable.
CONFERENCES
I try to maintain an open door policy. I encourage you to see if me should you have any questions or concerns. While face time is important, students should not consider it necessarily the best or exclusive means for communicating with me. There is little excuse for the complaint – ‘he is not available’ – when communication is possible by telephonic and electronic means.
Technology has made it easy to communicate.
please take advantage of it.
You are encouraged to contact me by e-mail. I will respond promptly.
CANVAS
This year I will be relying on PSU’s CANVAS system for communication with you. Please bear with me as I learn the system and expect glitches. I will post questions to the CANVAS class site and send e-mails via that site. Please check in regularly for information about the course. It will be your responsibility to keep apprised of the information posted there.
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Additional University Policies and Statements
UNIVERSITY DISABILITIES POLICY STATEMENT
To comply with University policy regarding persons with disabilities, this statement is included in this course syllabus:
Penn State welcomes students with disabilities into the University’s educational programs. Every Penn State campus has an office for students with disabilities. The Student Disability Resources Web site provides contact information for every Penn State campus: http://equity.psu.edu/sdr/disability-coordinator. For further information, please visit the Student Disability Resources Web site:http://equity.psu.edu/sdr.
In order to receive consideration for reasonable accommodations, you must contact the appropriate disability services office at the campus where you are officially enrolled, participate in an intake interview, and provide documentation: http://equity.psu.edu/sdr/applying-for-services. If the documentation supports your request for reasonable accommodations, your campus’s disability services office will provide you with an accommodation letter. Please share this letter with your instructors and discuss the accommodations with them as early in your courses as possible. You must follow this process for every semester that you request accommodations.
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COUNSELING & PSYCHOLOGICAL SERVICES (CAPS)
http://studentaffairs.psu.edu/counseling/
CAPS staff work with thousands of Penn State students per year in group therapy, individual counseling, crisis intervention, and psychiatric services as well as providing prevention, outreach, and consultation services for the University community. Services at CAPS are designed to enhance students' ability to fully benefit from the University environment and academic experience.
As specialists in working with undergraduate and graduate students, staff at CAPS can help you address your concerns in a caring and supportive environment. CAPS can help students resolve personal concerns that may interfere with their academic progress, social development, and satisfaction at Penn State. Some of the more common concerns include anxiety, depression, difficulties in relationships (friends, roommates, or family); sexual identity; lack of motivation or difficulty relaxing, concentrating or studying; eating disorders; sexual assault and sexual abuse recovery; and uncertainties about personal values and beliefs.
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PROTOCOL FOR RESPONDING TO BIAS MOTIVATED INCIDENTS
Penn State University has adopted a “Protocol for Responding to Bias Motivated Incidents.” It may be accessed HERE. It is grounded in the policy that the “University is committed to creating an educational environment which is free from intolerance directed toward individuals or groups and strives to create and maintain an environment that fosters respect for others.” That policy is embedded within an institution traditionally committed to academic freedom (the policy may be accessed here) and free and open discussion. Bias motivated incidents include conduct that is defined in University Policy AD 91 (accessed here). Students who experience a possible bias motivated incident, as well as students, faculty or staff who are witnesses of the same, are urged to report the incident immediately by doing one of the following:
* Contact your County Emergency Dispatch by dialing 911 in cases where physical injury has occurred or is imminent;
* File a report on the Report Bias website: http://equity.psu.edu/reportbias/statement;
* Contact one of the following offices:
University Police Services, University Park 814-863-1111
MRC Counselor/Diversity Advocate for Students 814-865-1773
Office of the Vice Provost for Educational Equity 814-865-5906
Office of the Vice President for Student Affairs 814-865-0909
Affirmative Action Office 814-863-0471
SYLLABUS
This Syllabus consists of a (1) Course Concept Statement, (2) Statement of Course Content and Structure, (3) Summary Syllabus (With Weekly Discussion Themes), and (4) Detailed Syllabus With Problems and Assigned Readings.
Course Concept Statement:
I am delighted to be teaching a course on Corporate Social
Responsibility (CSR). Like the subject itself, the course is a hybrid. CSR is inherently hybrid in its nature,
character, and manifestation as both law and policy. Its governance trajectories touch on the
essence of law and the lawyer's craft; its normative trajectories speak to
politics, ethics and morals, to the fundamental organization of cultures of
human interactions in the economic sphere.
To begin framing CSR, it might be useful to start by
considering two questions that dominated a century-long debate about the
economic, social, and political role of economic actors operating in corporate
form: (1) Whom must corporations serve?
And (2) to what extent should the regulation of corporations be left to the
market, to private ordering (contract law) among corporate stakeholders, or to
public regulation by the state? Both
of these questions reflect an even more fundamental question, the answer to
which remains unresolved: What is the essential nature of the corporation? Is
it an autonomous community, like a nation-state? Is it the sum of contractual
relations among some of the people with stakes in the joint enterprise? Or is
the corporation merely property, a complex commodity?
These questions remained highly contested through the end
of the twentieth century. Early on, however, the American bench and Bar seemed
to reach an uneasy stalemate about the contours of the debate regarding
corporate social responsibility. Since
then, it has been academics who argue, mostly among themselves, about the
nature, character, and purpose of the corporation beyond those limits of
discourse enforced by the practice community.
Within very wide parameters of law, social norm and the
operational constraints of risk and compliance in business behaviors, CSR can
be understood within three quite broad conceptual categories:
First, it focuses on enterprises--that is on institutions
organized for the purpose, principally, of economic activity. Collective and collective activities are at
the center of this field. It focuses on
the individual within a collective that is not the state. As such, also
embedded within it are those organizations and institutions that operate within
or in relation to that sphere. At its
limit, it touches on all organizations other than the state.
Second, it focuses on the societal role of
enterprises--that is on the structures and frameworks within which non-state
organizations (and specifically enterprises) order themselves in and of
themselves that are found outside the formal structures of state and
government. One speaks here of those direct relations between the enterprise
and its communities sometimes within and sometimes beyond the state and
sometimes in a space ceded by the state. But these societal relations can have
regulatory effect; and the state may well seek to legalize some to all of those
societal relations.
Third, it focuses on the responsibility of enterprises
within the societal sphere, that is on the autonomous obligation of enterprises
to embed itself within the regulatory structures through which it engages in
the communities where it operates. Responsibility is to be differentiated from
obligation. The societal responsibilities of enterprises are not to be confused
with the mandatory obligations of everyone subject to its jurisdiction to obey
the command of law. And yet the societal responsibilities of enterprises share
with law the notion of authority and leadership, of accountability and of
autonomy embedded within the strictures of the norms that frame
responsibility.
CSR, then, occupies a conceptual space between the social
and the legal, and between the moral and legal order. Such a conceptual space is inherently
unstable, especially in the context of globalization that at once appears to
shift public regulatory power to state collectives (energizing a robust sphere
of public international law), even as it also appears to shift regulatory power
to the private sphere. This instability thus manifests itself in contests for
control of regulatory space--through robust projects of legalization and
judicialization of the societal sphere in general, and the obligations of
enterprises specifically--or through the privatization of the legal sphere as
enterprises themselves are deputized to undertake the role once reserved to
states. It is at this point that corporate social responsibility becomes
interesting to the law--the lawyer, to the legislator, to the administrator and
the courts. Yet that convergence also reveals the vibrancy of governance beyond
the control of law, and of the state.
It is to these issues that the course is directed. This course provides an introduction to the law and
policy issues that touch on the responsibility of enterprises for their business
activities. It provides an overview of corporate social responsibility (CSR), as
a subject of legal regulation within states, as a matter of international law
and compliance beyond the state, and as a tool and methodology of corporate
governance and finance with governance effect through contract. It focuses on
the contemporary interplay between large corporations and governments, intergovernmental institutions, investors
and non-governmental organizations (NGOs).
Over the past several decades,
economic actors, and especially those operating as enterprises, have seen the
development of efforts to impose on them certain responsibilities for the
consequences of their decisions and to change the way that corporations view
the scope and character of their obligations to inside and outside
stakeholders. These efforts have produced both law at the domestic level and
norms and structuring principles at the international level. During its
evolution, CSR has progressed from legally tolerated traditional philanthropy
and a consignment of the issues to the “social sphere” of moral and ethics, to encompass
a much broader palette of actions and objectives. CSR now encompasses not only
what companies do with their profits, but also how they make them in virtually
every respect of their operations. Through their stakeholder relations and
business models, companies can develop policies and practices to respect human
rights and help address environmental and social concerns. These developments
have occurred at the local and national level through law and the adoption of
principles and expectations of conduct, they have also seen a strong growth in
international soft law standards touching on corporate responsivities to
respect human rights, for sustainable business practices and for the protection
of the environment.
There are many factors that have
contributed to increased
expectations for corporations to adopt CSR programs as governments have changed
the scope and thrust of their regulatory and ownership roles, and as regulatory governance
principles that favor of market-based approaches have become more compelling for
many states. Companies have been encouraged
through law and governance mechanisms to identify opportunities for innovative
products, technologies and business models aimed at proactively solving social
or environmental challenges. Many enterprises have developed internal
governance structures that embed a governance framework for CSR within their
international corporate governance.
As global production chains become
more important, these internal enterprise governance systems begin to have
profound effects throughout the entire production process, affecting workers
and other partner enterprises in many states. CSR has also become a tool for investors,
to mitigate emerging social, environmental and governance risks and to identify
opportunities for aligning financial performance with social, environmental and
governance (ESG) performance. In addition, CSR has become a lever for civil
society organizations to influence corporate practice and public policy.
Advocates have seen CSR as a means of addressing
governance gaps where government is weak. In contrast, critics have
seen CSR as an intrusion
of corporate interests
in the public sphere where government is strong.
More recently critics have seen in internationalism of CSR a profound and
direct attack on state sovereignty in the service of the objectives of
autonomous multilateral institutions that do not reflect local wishes. At the same time, the limits of voluntary CSR measures as a transformative agent are also becoming clearer,
and are raising questions about the need for a recalibration between
the public and private domains.
This course focuses on
large multinational corporations. These
complex organizations are composed of one or more organizations woven together
through ownership or contract and creating a set of business relationships that
span production chains—the integration of the process of economic activity
overseen usually by a corporate enterprise that serves as the apex of global
production chains, but has application to enterprises throughout supply chains.
The enterprise, embedded in global production within and outside the state
serves, in turn, as the object of regulation, including (but not limited to)
conventional systems of law. The emphasis of this course, then, is on the study
of the legal and regulatory frameworks, both existing and emerging within
states, in international institutions, and within production chains and the
apex corporations that manage them. The course surveys the literature and
examines topical examples drawn from today's US and global experiences. The
object will be to begin to develop a conceptual and “as applied” basis for
approaching key questions in CSR law in context: What has worked, what hasn't,
and why? What are CSR's limits? What is the future of CSR?
Statement of Course Content and Structure
This course will examine
these and related developments with a view to informing students who may become
lawyers or policy makers or who may work at enterprises (public and private), of
their responsibilities to their clients and employers (or to their enterprises)
in relation to CSR. For lawyers, policymakers
and advocates that means studying CSR for its potential mechanisms for business
accountability respecting important substantive norms. For future government lawyers that means
studying CSR for its relationship with and to legal regulatory tools. For
future leaders of public and private enterprises that means understanding the
impact of CSR in the cultures of their enterprises and in the role of CSR in
economic decision-making. The course provides case studies, conceptual frameworks and tools to help students understand
and assess different
components of corporate
social responsibility and different models of interaction between corporations, governments, intergovernmental organizations, investors and non-governmental organizations. It combines lectures, case studies,
class discussions and practical assignments.
The course will be taught
in a modified seminar style. Each week’s
discussion will be built around a group of materials that suggest the central
themes to be discussed. That discussion, in turn, is built around problems.
Each of the problems serves to center discussion of the materials
assigned. Students will spend the bulk
of the class discussing approaches to the issues suggested by the problems for
which the readings may offer insight.
The course begins with a
focus on the corporation itself, providing a grounding in the corporate form,
corporate legal personality and the core principles of corporate law and
operation that frames any CSR discussion in law and policy. It then turns to an
initial consideration of CSR itself—the elusiveness of consensus on definition,
approaches to an understanding of CSR as a legal and normative concept, and the
evolution of the field over the last century. The course then turns to CSR in a
broader context, focusing on the distinct approaches to the expression of CSR
among leading state and civil society actors. The materials then turn to the traditional
scope of the legal regulation of CSR, focusing on philanthropy and concepts of
waste in U.S. corporate law. The materials then broaden the legal examination
to consider emerging legal disclosure regimes in the United States, the U.K.
and France. The course then turns to the consideration of the privatization of
the law of CSR within corporations, especially those operating within global
production chains. The materials
consider how self-regulation works and the construction of corporate CSR
codes.
The materials then
examine recent litigation and future strategies around CSR codes with a focus
on veil piercing, mutuality of contract and 3rd party beneficiary
principles and their transformation. Having considered both self-regulation and
legal regulation within national legal orders, the materials then consider CSR
codes administered through third parties, with a focus on their legal and
social effects, including the emerging role of multi-stakeholder partnerships.
From this broad base, the course then turns to indirect approaches to the
legalization of CSR standards, considering enterprise liability, corporate
criminality, corruption and environmental and sustainability standards. In that
context, the rise and fall of the use of the U.S. Alien Tort Claims Act is
considered. The last section of the materials examines emerging international
soft law regimes, principally the UN Guiding Principles for Business and Human
Rights and the OECD Guidelines for Multinational Enterprises. The course ends
with a consideration of key trends and developments going forward.
Summary Syllabus (With Weekly Discussion Themes)
NOTE: THESE MAY BE SUBJECT TO CHANGE DUE TO CONSTANTLY
EVOLVING NATURE OF THE FIELD and STUDENTS
ARE ADVISED TO CHECK
THE CLASS PAGE EACH WEEK
Summary Syllabus:
Week 1: The
Corporation—Law and Policy Baselines:
Introduction to the corporate form, corporate legal personality and the legal
regulation of the corporation in society.
Week 2: Corporate Social
Responsibility; Definitions and approaches, and the evolution of the field
Week 3: Corporate Social
Responsibility in a broader context: distinct approaches of states, the
European Union and NGOs.
Week 4: The legal regulation of social responsibility: Considering the legal framework in the U.S. and other states focusing on philanthropy and the notions of corporate waste.
Week 5: Beyond philanthropy: disclosure regimes in national law.
Week 6: Self-Regulation
and its Legal Effects: Corporate Social Responsibility Codes; what are they
and how do they operate.
Week 7: Legal Effects of CSR Codes: Recent litigation and future strategies with a focus on veil piercing, mutuality of contract, and 3rd party beneficiary defenses.
Week 8: Third Party Certification Regimes: Legal and Social effects.
Week 9: International Soft Law Approaches: U.N. Global Compact and the U.N. Guiding Principles for Business and Human Rights; OECD Guidelines for Multinational Enterprises.
Week 10: Indirect Approaches in law: Enterprise Liability, Corporate Criminality, Corruption, environmental and sustainability concerns
Week 11: The U.S. as a global CSR Jurisdiction: The rise and fall of the Alien Tort Claims Act and CSR and alternative sites for national oversight of global CSR standards
Week 12: Emerging Legal Approaches: Fiduciary Duties of care and good faith (U.S.) and Corporate Compliance.
Week 13: Driving Transformative Change: The role of multi-stakeholder partnerships - Can new models of voluntary industry wide and cross-sector partnerships overcome market failures and governance gaps?
Week 14: The Future of Corporate
Social Responsibility: Key trends, environmental sustainability and
other perspectives .
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Detailed Syllabus With Problems and Assigned
Readings:
Week 1
The Corporation—Law and Policy Baselines: Introduction to the corporate form,
corporate legal personality and the legal regulation of the corporation in
society. Problem 1 (Megamart)
Readings:
(1)
Dodge v. Ford Motor Co., 204 Mich. 459, 170 N.W. 668 (1919);
(2)
CTS Corp. v. Dynamics Corp pf America, 481 U.S: 69 (1987);
(3)
Amanda Acquisition Corp. v. Universal Foods Corp., 877 F.2d 496 (7th
Cir., 1989);
(4)
U.K.:
(A)
Salomon V. Salomon & Co [U.K. 1897]
available http://corporations.ca/assets/Salomon%20v%20Salomon.pdf.
(B)
Daimler Co Ltd v Continental Tyre and Rubber Co (Great Britain) Ltd [1916] 2 AC
307 available http://unisetca.ipower.com/other/cs2/19162AC307.html.
(5) Backer, “The Autonomous Global
Corporation: On the Role of Organizational Law Beyond Asset Partitioning and
Legal Personality,” 41(4) Tulsa Law
Journal (Vol. 41(4), 2006): 541-571.
(6) Friedman, "The Social Responsibility of Business Is to Increase
Its Profits," New York Times Sunday Magazine, September 13, 1970;
(7) Allen, "Our Schizophrenic Conception of the Business Corporation," Cardozo Law Review (Vol. 14, 1992): pp 261-281;
(8) Strine, "Corporations are Our Creations," Harvard Law Bulletin, Fall
2015;
(9) Robé,
"Being Done with Milton Friedman," Accounting, Economics, and Law, 2 (No. 2, 2012);
(10) Benedict Sheehy and Donald Feaver, “Anglo-American
Directors’ Legal Duties and CSR: Prohibited, Permitted, or Prescribed?,” Dalhousie Law Journal 37(1):347-395
(2014).
Week 2:
Corporate Social
Responsibility;
Definitions and approaches, and the evolution of the field. Problem
1 (Megamart) continued.
Readings:
(1) Backer,
“Multinational Corporations, Transnational Law: The United Nation’s Norms on
the Responsibilities of Transnational Corporations as a Harbinger of Corporate
Social Responsibility as International Law,” Columbia Law Review (Vol. 37
2006): 287-308 (2006).
(2) John Ruggie, "Taking Embedded
Liberalism Global: The Corporate Connection," in Ruggie, ed, Embedding Global
Markets, chap. 8, pp. 231-253.
(3)
Sheehy, "Defining CSR: Problems and Solutions,"
Journal
of Business Ethics, 131 (2015): 625-648. This is a difficult article,
hence skim the philosophical discussions linking the various substantive sections, but pay close attention
to the latter.
(4) Kang & Moon, "Institutional complementarity between corporate governance and Corporate Social Responsibility: a comparative institutional analysis of three capitalisms," Socio-Economic Review, 10 (2012): 85-108;
(5) Kinderman, "'Free us up so we can be responsible! ' The co-evolution of Corporate Social Responsibility and neo-liberalism in the UK, 1977-2010," Socio-Economic Review, 10 (2012): 29-57;
(6) Wong, "Corporate social responsibility in China: Between the market
and the search for a sustainable growth
development," Asian Business
& Management, 8 (2009):129-148, focus on pp. 133-148;
(7)
Towards definition in the private sector:
Foley
Hoag: http://www.csrandthelaw.com/
Klippensteins: http://www.klippensteins.ca/our-practice-areas
(8)
Embassy of Sweden, “A Study on Corporate Social Responsibility Development and
Trends in China” (2015), http://www.csr-asia.com/report/CSR-development-and-trends-in-China-FINAL-hires.pdf
(9) China Chamber of Commerce
of Metals, Minerals
& Chemicals Importers
& Exporters,
"Guidelines for Social Responsibility in Outbound Mining Investments," available
at http://www.srz.com/files/upload/Conflict_Minerals_Resource_Center/CCCMC_Guidelines
for_Social_Responsibility_in_Outbound_Mining_Operations_English_Version.pdf.
(10) John G. Ruggie, Just Business:
Multinational Corporations and Human Rights
(New York: W.W. Norton, 2013), pp. xxv-xxxvi.
Week 3
CSR a broader context: (1) the relationship between CSR,
sustainable development goals and corporate activity, and the human rights
responsibilities of business; and (2) the role of business, states, public and
private international organizations—national law, international law, privatized
governance, governance gaps and extraterritoriality. Problem 2 (Creating a CSR Policy).
Readings:
(1) U.N General Assembly, Transforming our
world: the 2030 Agenda for
Sustainable Development A/RES/70/1 (21
Oct. 2015) available http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E; U.N. Sustainability Development Goals (https://sustainabledevelopment.un.org/?menu=1300)
(2) (A) U.N. Development Programme Press
Release: Global CEOs sign on to new UN Goals at United Nations Private Sector
Forum (26 Sept. 2015) available http://www.undp.org/content/undp/en/home/presscenter/pressreleases/2015/09/26/-global-ceos-sign-on-to-new-un-goals-at-united-nations-private-sector-forum.html; (B)
Impact 2030, Global Goals, available http://impact2030.com/global-goals/.
(3) U.N., The U.N. Guiding Principles on
Business and Human Rights, An Introduction (2011) available http://www.ohchr.org/Documents/Issues/Business/Intro_Guiding_PrinciplesBusinessHR.pdf.
(4) UNOHCHR, The Corporate Responsibility
to Respect Human Rights, An Interpretive Guide (HR/PUB/12/02; 2012) available http://www.ohchr.org/Documents/Issues/Business/RtRInterpretativeGuide.pdf
pp. 1-25
(4) Surya
Deva, Regulating
Corporate Human Rights Violations: Humanizing Business (London/New York: Routledge, 2012)
(5) Florian Wettstein, “CSR and the Debate
on Business and Human Rights: Bridging the Great Divide,” Business Ethics Quarterly 24(4):730-770 (2012).
(6)
Government of Canada: CSR: An Implementation Guide for Canadian Business (2014)
available https://www.ic.gc.ca/eic/site/csr-rse.nsf/vwapj/CSRImplementationGuide.pdf/$file/CSRImplementationGuide.pdf.
(7)
European Union: EU Commission, “A Renewed EU Strategy 2011-2014 for Corporate
Social Responsibility,” Brussels 25.10.2011 COM(2011) 681 final http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52011DC0681&from=EN
(8) Extraterritoriality
and the constraints of national jurisdiction: Surya Deva, “Corporate Human Rights Violations: A Case
for Extraterritorial Regulation’” in Christoph Luetge (Editor-in-Chief), Handbook
of the Philosophical Foundations of Business Ethics (Springer, 2012), pp.
1077-1090.
(9) Sara L. Seck, “Conceptualizing the
Home State Duty to Protect Human Rights”, in Corporate Social And Human Rights Responsibilities: Global Legal And
Management Perspectives (Karin
Buhmann, Lynn Roseberry, Mette Morsing, eds., Macmillan, 2010), available https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1729930.
(10)
e.g. Larry Catá
Backer, “Extraterritoriality and
Corporate Social Responsibility:
Governing
Corporations, Governing Developing
States.” Law at the
End of the Day. (Thursday,
March 27, 2008) Available at http://lcbackerblog.blogspot.com/2008/03/extraterritoriality-and-corporate.html.
(11) Benedict Sheehy, Defining CSR:
Problems and Solutions, J Bus Ethics 131:625–648 (2015).
Week 4
The legal regulation of social
responsibility:
Considering the legal framework in the U.S. and other states focusing on
philanthropy and notions of corporate waste and corporate compliance. Problem 3 (Happyland Amusement Parks).
Readings:
(1)
AP Smith Mfg. Co. v. Barlow, 26 N.J. Super. 106, 97 A.2d 186 (1953)
(2)
Theodora Holdings Corp v. Henderson, 257 A.2d 398 (Del.Ch. 1969)
(3) Kahn v. Sullivan , 594 A.2d 48 (Del
1991)
(4)
The Benefit Corporation: Hiller, J.S., “The Benefit Corporation and Corporate
Social Responsibility,” J Bus Ethics
118: 287-301 (2013).
(5)
Conference Board, Corporate Philanthropy in China (2012) https://www.avpn.asia/wp-content/uploads/2013/01/Corporate-Philanthropy-in-China.pdf
(6)
Jenny Hasrrow, “Contested Perspectives on Corporate Philanthropy,” in Corporate
Social Responsibility: A Research Handbook 234-254 (Kathryn Hayne, Alan Murray
s and Jesse Dillard, Routledge 2013).
(7)
H. Wells, “The Life (and Death?) of Corporate Waste,” Washing and Lee Law
Review 74 (2017). Available https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2878091
(8)
Richard Welford, “Corporate Social
Responsibility in Europe, North America and Asia: 2004 Survey Results,” The Journal of Corporate Citizenship 17:
33-52 (2005), available http://search.proquest.com/openview/2ce2cf3adcff4e7341c482facb64333f/1?pq-origsite=gscholar&cbl=43079.
(9)
Amaeshi, Kenneth M. and Adi, A.B. C. and Ogbechie, Chris and Amao, Olufemi O.,
Corporate Social Responsibility in Nigeria: Western Mimicry Or Indigenous
Influences? (2006). Available at SSRN: https://ssrn.com/abstract=896500 or http://dx.doi.org/10.2139/ssrn.896500
(10)
Jingchen Zhao, “The Harmonious Society, Corporate Social Responsibility and
Legal Responses to Ethical Norms in Chinese Company Law,” Journal of Corporate Law Studies 12(1):163-200 (2012)
Week 5
Beyond philanthropy: disclosure regimes in national law. Problem 4 (Shmata Apparel).
Readings:
(1) L. Backer, “From Moral Obligation to
International Law: Disclosure Systems, Markets and the Regulation of
Multinational Corporations” Georgetown
Journal of International Law, Vol. 39, 2008; L. Backer, “Transparency and
Business in International Law: Governance Beyond Norm and Technique,” in Transparency
in International Law 477-501 (Andrea Bianchi and Anne Peters, eds., Cambridge
U. Press, 2013).
(2) California Transparency in Supply
Chains Act of 2010 California
Civil Code § 1714.43
(3)
Barber v. Nestlé USA, Inc. No. SACV 15-01364-CJC(AGRx) 9 Dec. 2015 http://www.csrandthelaw.com/wp-content/uploads/sites/2/2016/01/Nestle-dismissal.pdf
(6) France: Supply Chain Due Diligence Law (2017) [24 March 2017: Constitutional Council removed the €10 to €30 million civil
penalty attached, liability continues to apply when companies default on their
duty of vigilance obligations, including failing to publish a vigilance plan or
faults in its implementation.]
(7) Proposal for a Regulation of the
European Parliament and of the Council setting up a Union system for supply
chain due diligence self-certification of responsible importers of tin,
tantalum and tungsten, their ores, and gold originating in conflict-affected
and high-risk areas–Outcome of the European Parliament's first reading
(Strasbourg, 13 to 16 March 2017); http://data.consilium.europa.eu/doc/document/ST-7239-2017-INIT/en/pdf; Press release http://www.consilium.europa.eu/en/press/press-releases/2017/04/03-conflict-minerals/
(7) Shift, "Mapping the Provisions of the Modern
Slavery Act Against
the Expectations of the UN Guiding Principles on Business and Human Rights," available at
http://shiftpro ject.org/sites/default/files/Shift_Mapping%20Modern%20Slavery%20Act%
20Against%20UNGPs%20Note_July2015.pdf;
(8) Howitt, "The EU law on non-financial reporting-how we got here," available at http://www.theguardian.com/sustainable-business/eu-non-financial-reporting-how
richard-howitt?CMP=twt_gu;
(9) Ghuliani, "India Companies Act 2013: Five Key Points
about India's 'CSR Mandate'," available
at http://www.bsr.org/en/our-insights/blog-view/india-companies-act-2013-five key-points-about-indias-csr-mandate'
Week
6
Self-Regulation and its
Legal Effects: Corporate
Social Responsibility Codes; what are they and how do they operate. Problem 5 (Slick Oil Corp CSR Policies).
Readings:
(1) Backer, Economic
Globalization and the Rise of Efficient Systems of Global Private Law
Making: Wal-Mart as Global Legislator, University of Connecticut Law Review (Vol. 39(4), 2007): 1739-1784.
(2) Backer, L.
“Multinational Corporations as Objects and Sources of Transnational
Regulation,” ILSA Journal of International & Comparative Law, Vol. 14, No.
2, 2008.
(3) Cedillo Torres, C, et
al., “Four Case Studies on Corporate Social Responsibility: Do Conflicts Affect
a Company’s Corporate Social Responsibility Policy?” Utrecht Law Review 8(3):
2012.
(4) Supplier Codes of
Conduct:
Week 7
Legal Effects of CSR Codes: Recent litigation and future strategies
with a focus on veil piercing, mutuality of contract, and 3rd party
beneficiary defenses. Problem 6 (ABC
Corp. and disclosure).
Readings
(1) Gibson, Dunnn,
“Corporate Social Responsibility Statements: Recent Litigation and Avoiding
Pitfalls” (2017).
(2) Bondali v.
Yum! Brands, Inc., 620 Fed. Appx. 483, 489 (6th Cir.
2015).
(3) Sud v. Costco
Wholesale Corporation, No. 4:15-cv-03783, 2017 WL 345994, at *5 (N.D. Cal. Jan.
24, 2017).
(4) Hodson v. Mars,
Inc./Mars Chocolate North America, LLC, No. 15-cv-04450, 2016 WL 627383, at *6
(N.D. Cal. Feb. 17, 2016)
(5) Jane Doe I et al. v.
Wal-Mart Stores Inc., No. 08-55706 (9th Cir., 2009) http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1214&context=globaldocs.
Optional Background: Katherine
E. Kenny, Code or Conduct: Whether Wal-Mart's Code of Conduct Creates a
Contractual Obligation between Wal-Mart and the Employees of Its Foreign
Suppliers, 27 Nw. J. Int'l L. & Bus.
453 (2006-2007)) http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1652&context=njilb. U.S: Chamber of Commerce brief on
appeal--http://www.chamberlitigation.com/sites/default/files/cases/files/2006/Doe%2C%20et%20al.%20v.%20Wal-Mart%20Stores%2C%20Inc.%20%28NCLC%20Brief%29.pdf.
(6) U.K:;
(B) Lubbe and Others and
Cape Plc. and Related Appeals [2000] UKHL 41 (20th July, 2000) available http://www.bailii.org/uk/cases/UKHL/2000/41.html;
(C) Daimler Co Ltd v
Continental Tyre and Rubber Co (Great Britain) Ltd [1916] 2 AC 307 (see week 1
above)
(7) Anna Beckers, Enforcing Corporate Social Responsibility
Codes: On Global Self-Regulation and National Private Law (Hart, 2015).
(8) Backer, L., "A Lex Mercatoria for
Corporate Social Responsibility Codes Without the State?: A Critique of
Legalization Within the State Under the Premises of Globalization," Indiana
Journal of Global Legal Studies 24(1):115-146 (2017)
Week 8
Third Party Certification Regimes: Legal and Social
effects. Problem 7 (Global Labor Network).
Readings
(1) Etilé, Fabrice and
Teyssier, Sabrina, Signaling Corporate Social Responsibility: Third‐Party
Certification Versus Brands (July 2016). The Scandinavian Journal of Economics,
Vol. 118, Issue 3, pp. 397-432, 2016. Available at SSRN: https://ssrn.com/abstract=2801361 or http://dx.doi.org/10.1111/sjoe.12150
(2) Errol Meidinger, “Forest Certification as a Global Civil Society
Regulatory Institution;” and “Forest Certification as Environmental Law Making by
Global Civil Society.”
(4) Backer, L. C.
"Transnational Corporations’ Outward Expression of Inward
Self-Constitution: The Enforcement of Human Rights by Apple, Inc." Indiana
Journal of Global Legal Studies, vol. 20 no. 2, 2013, pp. 805-879. Project
MUSE, muse.jhu.edu/article/538447.
(4) Fair Trade, http://fairtradeamerica.org/en-us/for-business/ways-of-working-with-fairtrade?gclid=CMycwMvOi9MCFdSIswodlNkEuQ.
(5) Teubner, G., Self-Constitutionalizing
TNCs? On the Linkage of "Private" and "Public" Corporate
Codes of Conduct
Week 9
International Soft Law Approaches: U.N. Global Compact; the
U.N. Guiding Principles for Business and Human Rights; OECD Guidelines for Multinational Enterprises.
Problem 8 (Human Rights Due Diligence).
Readings:
(1) U.N. Guiding
Principles for Business and Human Rights (2011); http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf
(2) Cases:
(A) Araya v. Nevsun
Resources Ltd., Supreme Court of British Columbia 2016 BCSC 1856; https://drive.google.com/file/d/0B5JyyTlmKnOfcVhiMjhFbFl1UGc/view.
(B) Angelica Choc v.
Hudbay Minerals Inc., HMI Nickel Inc. and Compañía Guatemalteca de Níquel
S.A.
(22 July 2013)
(3) Backer, From
Institutional Misalignments to Socially Sustainable Governance: The Guiding Principles for the Implementation
of the United Nation’s “Protect, Respect and Remedy” and the Construction of
Inter-Systemic Global Governance, 25(1) Pacific
McGeorge Global Business & Development Law Journal (Vol. 25, 2012):
69-171
(4)
Rasche, "A Necessary supplement-What the United
Nations Global Compact is
and is not," Notizie di Politeia, XXVII (# 103, 2011);
(5) Ruggie, "Global Governance and 'New Governance Theory':
Lessons from Business
and Human Rights," Global Governance, 20 (Jan-Mar 2014);
(6) Schoemaker, "Raising the Bar on Human Rights:
What the Ruggie Principles Mean for Responsible Investors,"
Focus on pp.
1-4, and 13-24.
(7) "Human Rights Requirements for World Cup Hosts, FIFA Sponsors," http://www.nytimes.com/ aponline/2015/ 12/14/sports/soccer/ap-soc-fifa-human rights.html?_r= !.
(8) Backer, “Moving
Forward The U.N. Guiding Principles For Business And Human Rights: Between
Enterprise Social Norm, State Domestic Legal Orders, and the Treaty Law that
Might Bind them All,” 38(2) Fordham
International Law Journal (Vol. 38(2), 2015) 457-542;
(10) David Bilchitz, “A
Chasm Between ‘Is’ and ‘Ought’: A Critique of the Normative Foundations of the
SRSG’s Framework and the Guiding Principles,” in Human Rights Obligations of Business: Beyond the Corporate
Responsibility to Respect? (Surya Deva and David Bilchitz, ed., Cambridge,
2013) pp. 107-137.
(11) OECD, Guidelines for
Multinational Enterprises (2011); http://www.oecd.org/daf/inv/mne/48004323.pdf.
(12) Backer, L., Case
Note: Rights And Accountability In Development (Raid) V Das Air (21
July 2008) And Global
Witness V Afrimex (28 August 2008); Small Steps Toward an Autonomous
Transnational Legal System for the Regulation of Multinational Corporations, 10(1) Melbourne Journal
of International Law 258-307 (2009).
(13) Specific Instance
between USW; Sindicato Nacional de Trabajadores Mineros, Metalurgicos,
Siderurgicos y Similares de la Republica Mexicana (Mineros); and Grupo Mexico
and its U.S. subsidiary, ASARCO, LLC for conduct in the United States; https://www.state.gov/documents/organization/261119.pdf.
(14) Specific Instance
between the International Union of Food, Agriculture, Hotel, Restaurant,
Catering, Tobacco and Allied Workers' Associations (IUF) and Starwood Hotels
& Resorts Worldwide for conduct in the Maldives and Ethiopia (2016); https://www.state.gov/documents/organization/257322.pdf.
(15) USNCP Final
Statement on the Specific Instance Between the International Union of Food,
Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers'
Associations (IUF) and PepsiCo, Inc. in India (2016); https://www.state.gov/documents/organization/256049.pdf.
(16) Santner, A., “A Soft
Law Mechanism for Corporate Responsibility: How the Updated OECD Guidelines for
Multinational Enterprises Promote Business for the Future”, 43 Geo. Wash. Int'l L. Rev. 375 (2011).
Week 10
Indirect Approaches in law: Enterprise Liability, Corporate
Criminality, Corruption, environmental and sustainability concerns. Problem 9 (Steimens Corp).
Readings
(1) Foreign Corrupt
Practices Act 15 U.S.C. § 78dd-1, et seq.
(2) SEC v. Eli Lilly No.
12-2045 (D.D.C. 2012) https://www.sec.gov/litigation/complaints/2012/comp-pr2012-273.pdf
(3) Joel M. Cohen &
Daniel P. Harris, Gibson, Dunn & Crutcher LLP, “Coerced Corporate Social
Responsibility and the FCPA,” The
International Comparative Legal Guide to Business Crime 2016: A practical
cross-border insight into business crime (6th Edition 2016) http://www.gibsondunn.com/publications/Documents/Cohen-Harris-Coerced-Corporate-Social-Responsibility-and-the-FCPA-GLG-Oct-2015.pdf.
(4) Amol Mehra and Ajoke
Agbool, "The Corporate Responsibility to Prevent
Corruption."
Forbes.com (July 1, 2011). https://www.forbes.com/sites/csr/2011/07/01/the-corporate-responsibility-to-prevent-corruption/#41bb9e2dae0c.
(5) Joel M. Cohen &
Daniel P. Harris, Gibson, Dunn & Crutcher LLP, “Coerced Corporate Social
Responsibility and the FCPA,” –
(6) Backer, Larry
Catá, The Evolving Relationship
between TNCs and Political Actors and Governments Research Handbook on
Transnational Corporations, Alice de Jong and Roman Tomasic, eds., Edward Elgar
Publishing Limited, 2015
(7) Brodie, D., Enterprise Liability and the Common Law
(Cambridge U. Press 2010).
(8) Seck, S., “Conceptualizing the Home State Duty to
Protect Human Rights”, in Karin Buhman, Mette Morsing, & Lynn Roseberry,
eds., Corporate Social and Human Rights
Responsibilities: Global Legal and Management Perspectives, (Palgrave
Macmillan, 2010) 25-51.
(9) Richard Meeran,
“Access to Remedy: The United Kingdom Experience of MNC Tort Litigation for
Human Rights Violations,” in Human Rights Obligations of Business: Beyond the
Corporate Repsonsibility to Respect (Surya Deva and David Bilchitz, eds.
Cambridge 2013) pp. 378-402.
Week 11
The U.S. as a global CSR Jurisdiction: The rise and fall of
the Alien Tort Claims Act and CSR and alternative sites for national oversight
of global CSR standards. Problem 10
(Rancho Bravo Mine Workers).
Readings:
(1) Kiobel v. Royal Dutch
Petroleum Co., 133 S.Ct. 1659 (2013)
(2) Jesner v. Arab Bank,
No. 13-3605 (2nd Cir; 2016); cert granted 2017 http://www.scotusblog.com/wp-content/uploads/2016/10/16-499-op-below-2d-cir.pdf.
(3) 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"(2010). Faculty Working Papers. Paper 114. http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/114
(4) ,Joel Slawotsky:
"Corporate liability for violating international law under The Alien Tort
Statute: The corporation through the lens of globalization and
privatization"(July
10, 2013); Guest Essay--Joel Slawotsky,
Rumors Of Corporate Liability’s Demise In The Context Of Alien Tort Suits Have
Been Greatly Exaggerated; July 20, 2011); Joel
Slawotsky on "Corporate
Liability Under The Alien Tort Statute: The Latest Twist".
(5)
Paust,
Jordan J., Non-State Actor Participation in International Law and the Pretense
of Exclusion (November 2, 2010). Virginia International Journal of Law, Vol.
51, No. 4, 2011; U of Houston Law Center No. 2010-A-34. Available at SSRN: https://ssrn.com/abstract=1701992 or http://dx.doi.org/10.2139/ssrn.1701992
(6) Pall A. Davidsson, “Legal
Enforcement of Corporate Social Responsibility within the EU,” Colum. J. Eur. L. 8:529 (2002).
(7) Robert McCorquodale, “Corporate
Social Responsibility and International Human Rights Law,” R. J Bus Ethics (2009) 87(Suppl 2): 385-400.
Week 12
Emerging Legal Approaches: Emerging Legal Approaches: Fiduciary
Duties of care and good faith (U.S.) and corporate compliance. Problem 11(Megamart Revisited).
Readings:
(1) Basic Cases: (A) Caremark Int’l Deriv. Litig., 698 A.2d 959, 970 (Del. Ch. 1996); (B) Stone v. Ritter, 911 A. 2d 362 (Del.Supr.
2006) available http://courts.delaware.gov/opinions/download.aspx?ID=84060; Horman v. Abney, 2017 WL 242571 *9 (Del.
Ch. January 19, 2017); In re Citibank (924 A.2d 106 (Del Ch 2009).
(2) Supply Chain
related cases: (A) In re Puda Coal Inc. Stockholder’s Lit., C.A. No. 6476-CS
(Del. Ch. Feb. 6, 2013); (B) In re
China Agritech Shareholder Deriv. Lit., WL 2181514 *26 (2013)
(3)
Strine Jr., L., Hamermesh,
R., Balotti, F., and Gorris, J.,“Loyalty’s Core Demand: The Defining Role of
Good Faith in Corporation Law.”
(4) Texin, L. “Corporate
Responsibility Scandals: What’s the Damage?” Corporate Citizenship, 6
September 2016.
(5) Ho, V. H., “Of
Enterprise Principles and Corporate Groups: Does Corporate Law Reach Human
Rights?” 52 Colum. J. Transnat’l L. 113, 160 (2013)
(6)
India: ‘Development,
Sovereign Support to Finance and Human Rights: Lessons from India’ in Juan
Pablo Bohoslavsky and Jernej Letnar Černič (eds.), Making Sovereign
Financing and Human Rights Work (Oxford: Hart Publishing, 2014), pp.
289-302.
(7) Corporate
Compliance: Fraud
Section of the Criminal Division, U.S. Department of Justice, updated
guidelines for the “Evaluation of Corporate Compliance Programs,” in February,
2017 available https://www.justice.gov/criminal-fraud/page/file/937501/download.
(8)
Douglas Cassel, “Outlining the Case
for a Common Law Duty
of Care of Business to
Exercise Human Rights
Due Diligence,” Business
And Human Rights Journal
1:179-202
(2016)(Cambridge University Press) accessible at
(9)
Evan A. Peterson, “Compliance and ethics programs: competitive advantage
through the law,” Journal of Management & Governance 17(4):1027-1045 (2013).
(E)
OPTIONAL: José A. Tabuena, “The Chief Compliance Officer versus the General
Counsel: Friend or Foe,” Compliance &
Ethics Magazine pp. 4-7; 10-15 (2006) available http://www.corporatecompliance.org/Portals/1/PDF/Resources/past_handouts/CEI/2008/601-3.pdf
(F)
OPTIONAL: Claire Hill and Brett McDonnell, Stone v. Ritter and the Expanding
Doctrine of Loyalty, 76 Fordham L. Rev. 1769 (2007), available at http://scholarship.law.umn.edu/faculty_articles/83
Week 13
Driving Transformative Change: The role of multi-stakeholder partnerships - Can new models of voluntary industry wide and cross-sector partnerships overcome market failures and governance gaps? Problem 12 (Gama Plaza Factory Building Fire).
Required Reading:
(1)
Baumann-Pauly, Nolan, Labowitz
& van Heerden,
"Setting and Enforcing Industry
Specific Standards for Human Rights
- The Role of Multi-Stakeholder Initiatives in Regulating Corporate Conduct".
(2) Patscheke, Barmettler, Herman, Overdyke
& Pfitzer, "Shaping Global Partnerships for a Post-2015
World." Stanford Social Innovation Review. 2014
(3) Nelson & Jenkins, "Tackling Global Challenges: Lessons
in System Leadership
from the World Economic Forum's
New Vision for Agriculture Initiative. CSR Initiative, HKS. January, 2016.
(4) Oxfam Briefing
Paper, "Moral Hazard?
'Mega' public-private partnerships in African
agriculture." September, 2014. Available at https://www.oxfam.org/sites/www.oxfam.org/files/file_attachments/oxfam_moral_hazard ppp-agriculture-africa-010914-en_O.pdf
(5) The example of global
garment supply chains:
(A) Shift, "From Audit to Innovation: Advancing Human Rights in Global Supply Chains," available
at http://www.shiftproject.org/publication/audit-innovation-advancing-human
rights-global-supply-chains'; read pp. 3-8 plus a case study of your choice;
(B) Labowitz & Baumann-Pauly,
"Beyond the Tip of the Iceberg: Bangladesh's Forgotten Apparel Workers," NYU-Stern
Center, available at
http://staticl.sguarespace.corn/static/54 7df270e4b0bal84dfc490e/t/5672d01f841aba5776 Od62 8a/l
450364959693/Beyond+the+ Tip+o f+the+Iceberg+ Report.
pdf;
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Week 14
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