Within Reach: A New Strategy for Regulating American Corporations that Commit Human Rights Abuses Abroad

Abstract

In recent years a more conscious public and better organized activists have shone a spotlight on the overseas practices of powerful, multinational corporations (“MNCs”). MNCs that profit from sweatshop conditions in developing countries, or that make use of unscrupulous armed forces to protect their mining sites and pipelines, are being called to account: frequently, on American soil, where their assets and brand reputations can best be reached. This primary vehicle for such suits against MNCs in the United States has been the Alien Tort Statute (“ATS”), a 1789 statute which grants U.S. district courts original jurisdiction over civil actions “by an alien for a tort…committed in violation of the law of nations.” Recently plaintiffs have also begun supplementing their actions with U.S. state common law claims, alleging torts such as assault and battery, wrongful death, false imprisonment, forced labor, and intentional infliction of emotional distress. This Note examines the bases for and ramifications of applying U.S. state common law to overseas harms, focusing particularly on cases which have arisen in the human rights context, alleging physical or environmental harms carried out by U.S. corporate actors. Distinguishing such fundamental tort law claims (such as claims involving battery, false imprisonment, or conversion) from more nuances policy-based claims which do warrant deference to the host nation, this Note argues that for a substantial sphere of harms, state common law claims are an appropriate and valuable tool for plaintiffs seeking redress from U.S. corporate actors engaging in harmful conduct overseas.