“The Limits of Human Rights Class Actions: American Advances and Retreats”

2019 Class Action Conference

3rd International Conference: Dispute Resolution of Consumer Mass Disputes

Collective Redress, Class Actions, and ADR

University of Haifa, Israel

March 28-29, 2019

 

“The Limits of Human Rights Class Actions: American Advances and Retreats”

 

Prof. Linda S. Mullenix

University of Texas School of Law

 

Abstract

 

While the American class action rule would seem to provide the ideal procedural vehicle for remediation of mass human rights violations, human rights class litigation in the United States has experienced mixed success over the past twenty years. The Alien Tort Statute and the Torture Victims Protection Act have provided the primary substantive jurisdictional bases for pursuing classwide relief for alleged human rights violations. Thus, the class action Rule 23 provides the procedural vehicle to effectuate the substantive rights guaranteed by the ATS and the TVPA. The Hilao case – the Philippine human rights litigation against the Marcos Estate — provides the best illustration of successful human rights class litigation under the ATS and TVPA. The Hilao class action sought and received compensatory damages for executions, torture, and disappearance of victims during the Marcos regime. The Hilao class litigation utilized a multi-phase trial plan and innovative statistical damage extrapolation to compensate victims. In addition to the Hilao class litigation, worldwide plaintiffs successfully accomplished restitution for victims and survivors of Nazi-era violations under class action auspices in the Holocaust Assets litigation, a class settlement approved by the appellate court. Notwithstanding these victories, the Supreme Court has severely retrenched the ability of foreign human rights claimants to pursue relief in federal courts in the recent landmark decisions Kiobel v. Royal Dutch Petroleum Co., Daimler AG v. Bauman, and Jesner v. The Arab Bank. Collectively, the Court in these decisions narrowly interpreted federal court subject matter and personal jurisdiction, impairing the ability of human rights victims to pursue relief under the ATS and Torture Victims’ Protection Act. In particular, the Supreme Court has indicated that absent legislative action from Congress, it would be inappropriate for courts to extend liability under the Alien Tort Statute to foreign corporate defendants where all the relevant human rights conduct took place outside the United States. Finally, the Supreme Court has expressed continuing unfriendliness to so-called F-cubed cases, where the litigation involves foreign plaintiffs suing foreign defendants in American courts, concerning actions that occurred in foreign jurisdictions. In essence, the Court has significantly closed the courthouse door to collective human rights’ litigants for violations occurring elsewhere in the world. However, some commentators have noted that even where human rights class litigation in the United States fails for jurisdictional or procedural reasons, such litigation often may serve a constructive purpose of bringing human rights violations to public attention.

 

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