Nick Friedman

In this article, I critically review the economic theory of corporate liability design, focusing on the allocation of liability between a corporation and its individual human agents. I apply this theory to transnational commercial contexts where human rights abuses occur and assess the likely efficacy of some putative liability regimes, including regimes requiring corporations to undertake human rights due diligence throughout their global supply chains. I advance a set of general considerations justifying the efficacy of due diligence in relation to alternative liability regimes. I argue, however, that due diligence regimes will likely under-deter severe human rights abuses unless they are supported by substantial entity-level sanctions and, in at least some cases, by supplementary liability for individual executives. The analysis has significant policy implications for current national and international efforts to enforce human rights norms against corporations.

Drucilla Cornell engaged in scholarship and activism in South Africa for over a decade, and indeed she moved home from New York to Cape Town to participate more fully in the life and politics of the newly democratic country. This was not only a prolific period of scholarship and activism in her life, but also an inflection point in the country’s nascent constitutional jurisprudence. In this article, we memorialize Drucilla’s extraordinary contributions to the development of South Africa’s constitutional order and of its legal academy. We situate these contributions in the broader set of concerns—about dignity and freedom, socialism and democracy, non-Western ideals, feminism, modernity, and the constitution of community—with which she had been engaged since the earliest days of her career. We include relevant anecdotes from her life in South Africa; not only her life as a scholar but also as a teacher, mentor, friend, and above all, a revolutionary activist.