Transnational Corporate Law Litigation

For nearly half a century, a federal statute colloquially referred to as the Alien Tort Statute has served as a pivotal battleground over whether corporations violating law abroad can be subject to civil suits in the United States. The statute has been used to bring hundreds of lawsuits against corporations involved in some of the most heinous human rights abuses and environmental catastrophes taking place in foreign nations. Recent Supreme Court cases, however, have sounded the death knell for the viability of future cases by restricting the extraterritorial reach of federal statutes. This Article presents a case for deterring corporate lawbreaking abroad through U.S. corporate law. Unlike Alien Tort Statute cases, corporate governance suits brought by shareholders would frame corporate lawbreaking in foreign nations not as torts actionable under a federal statute but as fiduciary duty claims under state law against directors and officers for enabling U.S. corporations to violate foreign law. In presenting a blueprint for litigators to bring what can be conceptualized as transnational corporate law litigation, this Article clarifies how violations of foreign law—including human rights laws, labor laws, and environmental regulations—can trigger powerful fiduciary duty claims against directors and officers in the United States. These suits promise to deter corporate lawbreaking by provoking the judicial articulation of norms governing transnational business operations with vast implications for understanding the social responsibility of modern corporations.