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I would like to express my deep gratitude to Professor Dhammika Dharmapala for his thoughtful guidance throughout the writing process, as well as Jacob Grossman for his comments and numerous crucial edits. Additionally, I would like to thank my partner Alysson Malgieri for her infinite patience and emotional support at all times, everywhere.

This paper was prepared for the “International Law as Behavior” Conference organized by the American Society of International Law and the University of Georgia School of Law. I would like to thank participants in that conference and Katherina Linos for helpful comments. I would also like to thank Vera Shikhelman and Katie Bass for research assistance, and the Baker Scholars Fund at the University of Chicago Law School for financial support.

The author wishes to thank Jenny Martinez, Robert MacCoun, Mariano-Florentino Cuellar, Mike Tomz, Lee Ross, Dan Ho, Beth Van-Schaack, Gabriella Blum, Beth Simmons, Paul Sniderman, Allen Winer, Charles Perrow, Karl Eikenberry, Bernadette Meyler, David Sloss, and Alison Renteln for their thoughtful comments, suggestions, and advice. The article benefitted greatly from the thoughtful editing of Katharine Wies and the editorial team of the Chicago Journal of International Law. I am also grateful for the comments I received from the participants of the 2016 Empirical Legal Studies Conference, Duke University; 2016 American Society of International Law (ASIL) Annual Meeting ‘New Voices’ panel, Washington, DC; the 2016 Harvard Experimental Political Science Conference, Harvard University; and the 2014 Northern California International Law Scholars Workshop, U.C. Hastings. This research project was made possible thanks to the generous financial support of the Christiana Shi Stanford Interdisciplinary Award in International Studies (SIGF), the Stanford Laboratory for the Study of American Values (SLAV), the CISAC Zuckerman research grant, and the Freeman Spogli Institute Research Grant.

An earlier form of this article was published as Defining Cybersecurity Due Diligence Under International Law: Lessons from the Private Sector, in Ethics and Policies for Cyber Warfare __ (Maria Rosaria Taddeo ed., 2016). We would like to thank Springer Nature for allowing the republication and expansion of this chapter as an article for the present volume.

Special thanks to the CJIL staff and Professor Emily Buss for their guidance, feedback, and support throughout the development of this topic. Additional thanks to the attorneys of Allen & Gledhill LLP, Harry Elias Partnership LLP, and Kilpatrick Townsend & Stockton LLP who helped inspire this paper, though these views are my own.

For comments and suggestions, the author thanks June Carbone, Jessica Clarke, Tom Ginsburg, Mark Goodale, Oren Gross, Fred Morrison, Fionnuala Ní Aoláin, Robin Phinney, Dan Schwarcz, Kathryn Sikkink, Jonathan Simon, Margaret R. Somers, Kiyo Tsutsui, Susan Waltz, Laura Weinrib, Barbara Welke, and Richard Wilson. For valuable research assistance, the author thanks Ashlyn Clark, Ceena Idicula, Spencer Ptacek, and Eric Ryu. The author is also grateful for comments received at the Fritz Thyssen Institute, Cologne, Germany, the Max Planck Institute, Göttingen, Germany, the University of Minnesota Law School Squaretable Workshop, the University of Michigan Law School Human Rights Workshop, and panel sessions at the annual meetings of the Law & Society Association and the American Sociological Association.

The author wishes to thank Jack Goldsmith, William Alford, Matthew Stephenson, Jacob Gersen, Elisabeth de Fontenay, James Coleman, Jacob Eisler, and William Dodge for helpful comments and conversations.

I am grateful for the important feedback and comments of Doug Cassel, Jessica Clarke, Prentiss Cox, Fionnuala Ni Aolain, Hari Osofsky, Richard Painter, Beth Stephens, James Stewart, and David Weissbrodt. I also appreciate the insights of my colleagues at the University of Minnesota Law School faculty workshop and those at the Business and Human Rights Scholars Conference sponsored by the University of Washington School of Law, the New York University Stern Center for Business and Human Rights, and the Rutgers Business School, the Rutgers Center for Corporate Law and Governance, and the Business and Human Rights Journal. I have been counsel for parties or amicus curiae in a number of cases mentioned in this article, including on an amicus curiae brief on superior responsibility in Doe v. Drummond. I thank the scholars I had the privilege to work with on the amicus curiae brief as well as my co-counsel, Judith Chomsky. Thanks to the wonderful research librarians at the University of Minnesota Library—in particular Connie Lenz and Loren Turner, and former UMN international law librarians Mary Rumsey and Suzanne Thorpe. Excellent research assistance was provided by Griffin Ferry, Anne Dutton, Soren Lagaard, Conor Smith, and Ceena Idincula Johnson. Special thanks to the editors at the Chicago Journal of International Law for their thoughtful, careful, and professional work.

Unless otherwise noted, translations are mine. I thank Professor Mireille Delmas-Marty for her helpful comments on a draft of this article and for the opportunity to present it in an earlier form at the Collège de France. I also thank Professor Olivier Moréteau for inviting me to present some of the ideas expressed here at the 2016 annual meeting of Juris Diversitas.