Sunday, August 11, 2019

Teaching Corporate Social Responsibility Law: CSR in the Present Tense; A Syllabus 3.0

(Pix © Larry Catá Backer 2018)

For the last two years I have been developing a semester long course (focused primarily on law students and graduate students in international affairs) on Corporate Social Responsibility Law. The subject is usually I neglected outside of Business Schools, and even there it may be closely associated with business "ethics." Law schools tend to be indifferent, except as a possible hyper-specialized addendum to "real" course, or reconstituted usually as an adjunct to human rights or environmental law classes. At its best, it is sometimes better developed as part of the clinical curriculum. Indeed, the first time I taught the course was in the School of International Affairs. Only later was it possible to offer the course in a law school (which considering an indifference of legal academics to courses that are not traditionally doctrinal in conventional ways was to some extent a surprise).

I have been chronicling these efforts over the last two years (version 1.0: Corporate Social Responsibility Law--A Tentative Syllabus; Version 2.0: Teaching Corporate Social Responsibility Law: A Syllabus 2.0). My core object was to try to capture both the existing practice and emerging conceptions of the corporate social responsibilities of enterprises both have rapidly shifted from a focus on charity, one focused on human rights and sustainability. At the same time I have sought to capture the shift from a centering of these issues on the domestic legal orders of states, to international public law and market based societal regulation. Lastly, I have begun to try to embed emerging sensibilities that increasingly see in data driven analytics and consequential algorithms, a new and more potent regulatory tool for managing the societal responsibilities of enterprises across borders.

CSR Version 1.0 was a good effort, but proved to be more challenging than expected for students. The reason was simple: it was an academic's syllabus. That was a problem especially since the object of the course ought to have been less to impress my colleagues than to effectively impart knowledge to students. A few lessons from that experience: Translating theory to immediate and concrete realities proved to be more interesting to students than a deeper but more abstract engagement with the critical issues and challenges of the topic. Second, working through a live example provided much more student ownership of the materials than the traditional approaches. Third, comparison across business sectors and states proved far more enriching than alternatives. Comparisons among enterprises, among institutions, and among states, proved quite useful in drawing insights that students found profitable.

So, with these insights I produced my CSR Syllabus 2.0, which drew on the lessons I hoped I learned. It was better, but still not as useful as it could be. The exercises were not as connected as they might have been. The focus on sustainability and data driven governance was given too little attention. Also necessary was more time devoted to actually understand the interrelationships between charity, human rights, sustainability and enterprise engagement with these as an interrelated set of business objectives (or costs of production or risk/compliance centers). My sense was that the mechanics of the course were now more compatible with the way students might better approach the course. But there was also a sense that the materials might be more immediate. I found that it was as useful to work through the materials (theory and application) through an analysis of events occurring in real time, than to isolate those and work through them in a more historical context. CSR, in effect, needed to operate in the present tense.

Now I have produced Version 3.0 in which I sought to incorporate some of the insights learned from teaching Versions 1.0 and 2.0. Rather than developing a more complete taxonomy through which the class would dutifully journey, the syllabus is now constructed so that multiple issues can be introduced and considered in context through a series of "as applied" assignments. Students will also be prepared better to fend for themselves--the course is now oriented more toward capacity building through deep knowledge and deep process exercises. At least that is the hope.

The syllabus, relevant portions of which follow, including a Statement of Course Content and Structure. All still remains very much a work in progress. That is as it should be for a field of law-politics-economics that is still in its infancy. Comments and suggestions still gratefully appreciated. The full syllabus may be accessed HERE, along with Versions 1.0 and 2.0. I will report form time to time on the course.
(Pix © Larry Catá Backer 2019)

SummarySyllabus (With Weekly Discussion Themes)


Summary Syllabus:


Part I Couse Introduction

Week 1:  Course Introduction—Concepts, Law and Policy Baselines: Introduction to the course; CSR definitions and approaches, and the evolution of the field.

Part II Unpacking the Corporate in Social Responsibility

Week 2: The Corporate in CSR; corporations, enterprises, and systems; baseline concepts in law and policy. The object is to understand the corporate form and to begin to examine the alignment between corporate for, the organization of production and the distribution of control (legal, economic, or political).


Week 3: Entities and Relationships: What sort of Entities, systems or relationships are covered under CSR provisions; Group Presentation 1 (The  Organization of the Responsible Enterprise).


Part III: The Nature of Responsibility in CSR—Focusing on Regulatory Structures: National, International and Private


Week 4 Entities and Relationships: Connecting Entities with responsibilities. What sort of Entities, systems or relationships are covered under CSR provisions.


Week 5: Responsibility as Transparency: disclosure regimes in national law and the use of market driven management of behavior; the use of transparency and compliance systems by the government to monitor and hold enterprises accountable for violations of law.


Week 6: Self-Regulation; Third Party Certification,  and its Legal Effects: Corporate Social Responsibility Codes; what are they and how do they operate; third party certification, legal and social effects; CSR and social credit.

Part IV: The Societal in Corporate Social Responsibility

Week 7: Philanthropy and 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 8: Presentation of group reports on enterprise philanthropy.


Week 9: CSR and Human Rights: the development of human rights based normative systems for the regulation of corporate economic activity.


Week 10: Presentation of group reports on enterprise human rights initiatives.


Week 11: CSR and Sustainability:  the broadening of corporate responsibility from philanthropy and human rights to sustainability, understood both as respect for environment and resource management for the long term.


Week 12. Presentation of group reports on enterprise sustainability initiatives.



Part V: The Nature of Responsibility in CSR—Remedy


Week 13:  International Soft Law Approaches: the U.N. Guiding Principles for Business and Human Rights;  OECD Guidelines for Multinational Enterprises. 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 14: Group Presentation 2 (Enterprise CSR Remedy and Grievance Mechanisms) 





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 duties, obligations and responsibilities in ways that matter to clients and to institutions with authority to affect business behavior.  For lawyers, policymakers, and advocates that means examining 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.   Each student will be assigned an enterprise (For the most part an apex corporation heading up a global production chain). The student will learn CSR through its application by the assigned enterprise. The object is to teach “law and policy in action” at the operational level, and to avoid, to the extent possible, too great an emphasis on abstract concepts detached form the real world in which they are being applied, and through this application, changed.    

The course is divided in five Parts. Part I serves as introduction. Students will consider a core hypothetical around which most of the issues encountered in CSR can be applied.  That will set the tone for the course, one in which the student will be asked to apply abstract knowledge to the concrete problems of enterprises.  To that end, students will be broken up into small groups.  Each will be assigned an enterprise.  This enterprise will serve as the focus of the CSR work for the semester.  During the term, students will produce four reports in which the issues studied will be applied.  Students will be asked to compare the way in which these different enterprises respond to the challenges of CSR.  Lastly, the introductory materials will deal with issues of definition.

Part II unpacks the corporate in corporate social responsibility. It introduces the student to the baseline concepts in law and economics of the corporation, the enterprise, and systems of production.  It also considers the policies, including regulatory principles and policies under which these are regulated. Also considered will be the range of enterprises and systems of production that are covered by CSR regimes—either as legal or societal matters. Part II ends with student presentations discussing the organization of the enterprises which they have been assigned.  This provides the baseline knowledge necessary for deeper CSR study.

Part III draws students to a study of the alignment between corporate form and CSR responsibility.  This part focuses examination on regulatory structures in national, international and private governance systems.  Students will be introduced first to responsibility as transparency.  These include emerging national law-based disclosure regimes. But it also includes the use of markets driven management of behavior, the use of transparency and compliance systems by government to monitor and hold enterprises accountable. Students next consider enterprise self-regulation and third-party certification, along with its legal effects.  The trend toward data driven compliance systems is also introduced. Students will then make their third presentation—an examination of how enterprises incorporate CSR into their management and decision making.

Part IV considers the “societal” in CSR. These materials serve as the conceptual heart of the course. Philanthropy and the legal regulation of social responsibility is first considered. Students will consider the legal framework in the U.S. and other states focusing on philanthropy and the notions of corporate waste. Next, students will examine CSR and human rights regimes. Special attention will be drawn to the development of human rights based normative systems for the regulation or management of economic activity. Lastly, students will consider the evolving systems of sustainability-based CSR responsibilities. Students deepen their exploration of the development of philanthropic, human rights, and sustainability based CSR initiatives through close study of the practices and systems of the enterprises they have been assigned.  Each group will present reports on their enterprise’s philanthropic, human rights, and sustainability CSR initiatives.

Part V ends our examination of principal trends in CSR. It examines the “Responsibility” part of CSR with a focus on remedy. Students are first introduced to international and soft law approaches—with a focus on the mechanisms in the OECD Guidelines for Multinational Enterprises and its NCP system. The scope of non-judicial grievance mechanisms are considered through the work of the work of the UN High Commissioner for Human Rights. Students then consider the legal effects of CSR Codes. Lastly students consider the emerging international regulatory initiatives, focusing on the efforts to draft a comprehensive treaty for business and human rights. issues of home state remedies and extraterritorial application of law.

The course ends with a last student presentation, examining enterprise grievance mechanisms, anti-corruption efforts and assessments of reporting. The presentations will then be used as the basis for student final papers.


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