Christen Broecker

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Corporate Alien Tort Statute (ATS) litigation is an increasingly established feature of U.S. law, and it possesses the unique capacity to promote corporate responsibility worldwide by establishing baseline limitations on the conduct of transnational business activity. Yet to date, there has been surprisingly little investigation into whether the United States should be pursuing global regulation of corporate behavior through the ATS; whether ATS adjudication is structurally capable of serving as an effective form of global regulation of corporate behavior; and the implications of global administrative law for ATS adjudication – particularly whether U.S. courts incur obligations beyond those imposed by domestic law when they participate in a broader global regulatory enterprise. This paper undertakes an initial inquiry into these issues, assessing the potential effectiveness and legitimacy of the ATS from a regulatory standpoint and offering suggestions for modifying key aspects of ATS adjudication to increase the legitimacy and effectiveness of the regulatory enterprise. It concludes that ATS adjudication in U.S. courts is a global regulatory tool with the potential to effectively and legitimately articulate and provide for the enforcement of minimum human rights standards for global corporate behavior. However, it cautions that this potential is as yet unrealized and that the success of the ATS as a tool of global regulation will depend on the ability of U.S. courts to conceive of their adjudication of such claims as one component of a broader global regulatory effort and to exercise their jurisdiction in a principled and legitimate manner.