With All Deliberate Speed: Civil Human Rights Litigation as a Tool for Social Change

Article excerpt

In Sosa v. Alvarez-Machain, the United States Supreme Court confirmed the jurisprudential validity of suits brought under the Alien Tort Claims Act to enforce international human rights norms. This Essay is concerned with the strategic and normative questions that remain, such as how to maximize the impact of these cases and ensure that they advance the human rights movement's norms and ideals. Taking off on the model of "public impact" litigation inaugurated, or at least exemplified, by Brown v. Board of Education, this Essay discusses the various "impacts" human rights litigation in the United States can have on plaintiffs, their communities, defendants, potential defendants, the human rights movement, and other processes of social change in target countries.

As this Essay discusses, a necessarily impressionistic survey of the results of ATCA-style cases filed to date reveals that these impacts are most salient on the parties involved and their immediate communities, especially as a function of corrective justice. The broader impact of human rights litigation is more speculative, as it remains difficult to measure to what degree ATCA-style litigation has contributed to the deterrence of perpetrators and ultimately the reform of states' treatment of their citizens and others within their control. Because these confirmed first order effects remain worthy of praise and replication, the lack of empirical "proof" of broader second order effects does not undermine this effort. Indeed, practitioners of ATCA-style litigation should be wary of espousing an overabundance of objectives for this litigation at the risk of overshadowing what these cases do accomplish for individual victims of human rights abuses. Likewise, human rights advocates should not pin their hopes on achieving these broader impacts at the expense of their clients and their clients' experience with the litigation process.

Notwithstanding the first and second order effects that have been achieved, this Essay cautions that such litigation should not replace other forms of human rights advocacy. An overreliance on adversarial litigation, as opposed to other processes of social change, raises some of the same concerns that surface in the civil rights context about the efficacy of resorting to law to promote durable social change and the ability of the judicial process to address major social and economic problems. Rather, human rights litigation must be pursued as one component of a multifaceted strategy toward the enforcement, broadly defined, of human rights norms. As the potential for human rights enforcement in the classical sense becomes real, civil cases in U.S. courts will increasingly join other domestic and international institutions in their efforts to ensure comprehensive accountability for human rights abuses, develop enforceable human rights norms, provide redress for victims, and ultimately reform human rights conditions around the world.

It has been said that Filártiga v. Peña-Irala1 is the Brown v. Board of Education2 of human rights litigation.3 Like Brown, Filártiga presents one of those rare "breakthrough moments" in law.4 In Filártiga, the Second Circuit confirmed that victims of human rights abuses abroad could seek legal redress in United States courts under the then-obscure Alien Tort Claims Act (ATCA).5 Filártiga thus inaugurated a steady line of cases in U.S. courts invoking the ATCA and related statutes6 to adjudicate international human rights claims. For a variety of reasons, including the very existence of these statutes, civil litigation has emerged as a prominent means for the promotion of international human rights norms in the United States.7

Beyond the shared status of the two cases as legal watersheds, the analogy between these cases-and indeed the premise of this Symposium Panel-merits greater scrutiny. Accordingly, this essay meditates on the way in which Filártiga and its progeny simultaneously fit within, and diverge from, the model of public impact litigation inaugurated-or at least exemplified-by Brown. A brief summary of these cases reveals that in some respects, ATCA-style litigation is a more modest enterprise, akin to personal injury or mass tort suits involving individual victims seeking redress for violations of international norms. That said, human rights advocates share the ambitions of practitioners of "public impact" litigation in using judicial processes to transcend the dispute between individual litigants, advance a particular political cause or agenda, and produce lasting and systemic changes in countries where human rights violations occur.8 At the same time, these cases are no longer exclusively a tactic of human rights lawyers. Members of the plaintiffs' bar, who are perhaps motivated more by the potential high stakes promised by these cases than by ideological or reform goals, are increasingly initiating such suits. Thus the diversification of human rights litigation in terms of actors, desired outcomes, and motivations resists classification as any one litigation model.

This Essay then discusses the various "impacts" ATCA-style litigation in United States can have on plaintiffs, their communities, defendants, potential defendants, the human rights movement, and other processes of social change in target countries. A necessarily impressionistic survey of the results of ATCA-style cases filed to date reveals that these impacts are most salient on the parties involved and their immediate communities. The broader impact of human rights litigation is more speculative, as it remains difficult to measure to what degree ATCA-style litigation has contributed to the deterrence of perpetrators and ultimately the reform of states' treatment of their citizens and others within their jurisdiction and control.

However, because confirmed first order effects remain worthy of praise and replication, this lack of empirical "proof of broader second order effects does not undermine this effort. Indeed, practitioners of ATCA-style litigation should be wary of espousing an overabundance of objectives for this litigation, because doing so may undermine or overshadow what these cases do accomplish for individual victims of human rights abuses. Likewise, human rights advocates should not pin their hopes on achieving these broader impacts at the expense of their clients and their clients' experience with the litigation process. In any case, notwithstanding the first and second order effects that have been achieved, this Essay cautions that such litigation should not replace other forms of human rights advocacy. An overreliance on adversarial litigation, as opposed to other processes of social change, raises some of the same concerns that surface in the civil rights context about the efficacy of resorting to law and the judicial process to promote durable social change and the ability of the judicial process to address major social and economic problems.9

Putting these cautions to the side, several key cases are poised to offer real opportunities for victims of rights violations to obtain monetary compensation for the first time. The Supreme Court recently confirmed the jurisprudential validity of these suits, affirming the conclusions of the majority of courts to consider the issue.10 This Essay is thus concerned with the more strategic and normative questions that remain: how do these cases advance the human rights movement's norms and ideals?11 Should human rights advocates promote an increase in ATCA-style litigation in the United States? Should advocates encourage the adoption of similar statutes abroad? How can ATCA practitioners ensure that these cases exert the maximum impact-on parties and beyond? As the potential for human rights enforcement in the classical sense becomes real, civil cases in U.S. courts will increasingly join other domestic and international institutions in their efforts to ensure comprehensive accountability for human rights abuses, develop enforceable human rights norms, provide redress for victims, and ultimately reform human rights conditions around the world.


"Public interest" litigation typically displays two paradigmatic forms, each with its own objectives and strategies: direct client advocacy and public impact litigation.12 Direct client advocacy prioritizes the needs of a given client as the primary focus of the provision of legal services. In contrast, Brown and its progeny exemplify the public impact model, which seeks to use legal tools and the legal process to achieve more systemic change and advance broader goals than the resolution of a discrete dispute between two parties.13 Many ATCA-style cases can be situated along a continuum linking these two approaches, with different cases exemplifying characteristics of the two models. Additionally, some of the most recent ATCA-style cases cannot realistically be characterized as either form, instead adhering to a private law model of mass tort litigation.14

While Filártiga itself was a test of the modern applicability of the ATCA, the path of ATCA litigation has not exhibited the same level of coordination that marked the desegregation litigation leading up to and later heralded by Brown.15 Indeed, rather than proceeding through a series of strategic test cases, ATCA litigation has evolved more organically and opportunistically. This is due in part to the cases' tort character; although potential plaintiffs abound,16 constitutionally grounded principles of personal jurisdiction require at least the transient presence of a defendant. In addition, litigation is party-driven, without national or international oversight,17 so the direction this line of precedent has taken is not readily subject to control. Although several key nongovernmental organizations (NGOs) and affinity groups routinely engage in ATCA-style litigation,18 and seasoned ATCA lawyers regularly collaborate on cases, no one NGO has coordinated this litigation in the centralized way that the NAACP's Legal Defense Fund (LDF) was able to direct the desegregation litigation.19

ATCA-style litigation comes in three primary forms: actions against individual perpetrators, actions against corporations doing business in countries where human rights abuses are occurring, and actions against U.S. government officials or employees involving alleged abuses in or attributable to the United States. Although an important goal of civil human rights litigation is the reform of abusive government practices, principles of foreign sovereign immunity have prevented most suits against repressive governments from proceeding in a direct manner (unless one of the narrow exceptions to immunity applies).20 Thus, ATCA-style litigation must proceed more indirectly against individual defendants who do not benefit from other forms of immunity, such as head of state or diplomatic immunity, or who as private actors are amenable to suit.21 The first ATCA cases generally proceeded against individual defendants hailing from defunct, pariah or politically unimportant regimes.22 Recently, however, plaintiffs' lawyers have become more ambitious in their targets, pursuing sitting heads of state23 and other high government officials hailing from U.S.-allied nations or strategically important regimes.24

In the second class of cases, plaintiffs have filed a number of cases against multinational corporate entities (MNCs) typically engaged in resource extraction or offshore production (either directly or through wholly-owned subsidiaries) in states where human rights abuses are prevalent. The apparent viability of the corporate cases provoked a number of NGOs concerned with environmental and labor rights to add ATCA litigation to their advocacy tactics.25 Some such cases involve allegations that the corporations engaged, or continue to engage, in rights abuses directly.26 Others attempt to hold corporate actors liable for the abuses of foreign governments through theories of complicity, joint action, and agency.27

With respect to the third class of case against U.S. agents or officials, ATCA-style litigation has rarely provided the opportunity to "engineer"28 the kind of domestic institutional reform agenda pursued by other public impact litigation,29 such as Brown and its progeny.30 In a virtually extinct line of cases targeting past and present U.S. government officials in an effort to influence U.S. foreign policy, courts have been close to unanimous in ruling that such suits are barred by sovereign immunity doctrines or raise nonjusticiable political questions.31 However, suits may proceed to the extent that private actors are working in conjunction with U.S. government agencies.32

The first generation of individual ATCA-style actions was initiated by lawyers affiliated with nonprofit human rights organizations, or lawyers working pro bono, who were inspired by the tradition of using legal tools to advance morality-driven goals.33 At the outset, these legal pioneers sought to establish the ATCA as a tool for the enforcement of human rights norms and to gain judicial elaboration of the scope of those norms. Although ostensibly tort disputes seeking retrospective relief,34 obtaining an executable judgment was often a secondary goal of this litigation. Indeed, most of the cases' damage awards were issued by default and/or are unenforceable-"a teasing illusion like a munificent bequest in a pauper's will."35 Nonetheless, the cases exposed the presence of alleged abusers within the United States,36 created an opportunity for norm enunciation, and achieved, at a minimum, a symbolic denunciation of abuses. Many ATCA-style cases involving individual victims exemplify the client advocacy approach to litigation, with practitioners intent on providing their clients with a meaningful experience through civil litigation as a form of psychosocial rehabilitation. Other cases, by contrast, are more defendant-oriented and are thus geared toward exposing both the abuses and the perpetrators to public scrutiny and opprobrium.37 Human rights advocates have generally cheered these strategies and results, although a few detractors have denounced this endeavor as nothing more than ideological theatre.38

As ATCA jurisprudence became more established and courts confirmed that corporations could be sued for human rights abuses, the statute was "discovered" by plaintiff-side lawyers more accustomed to bringing shareholder derivative actions and mass tort litigation through the class action mechanism.39 These practitioners have filed a number of cases against corporate entities amenable to suit in the United States, some on the heels of individual actions involving similar claims and with the benefit of their predecessor's factual investigations and legal briefing.40 The arrival of these legal entrepreneurs marks the departure of ATCA-style litigation from the exclusive domain of pro bono and NGO litigators.

Human rights lawyers have greeted these new entrants with ambivalence. On the one hand, activists are encouraged that the jurisprudence is robust enough to attract attorneys with pecuniary motivations and welcome the increased pressure on MNCs to reform their overseas practices in keeping with human rights standards. On the other hand, they recognize the potential for ill-founded cases to create "bad law" and for other goals of the movement to be undermined where counsels' objectives, priorities, and tactics may diverge dramatically from those of human rights lawyers.41 A promising response to this tension can be found in attempts by career human rights lawyers and NGOs to partner with members of the plaintiffs' bar. Under this division of labor, the activists provide the expertise in client relations, knowledge of the relevant norms, contacts on the ground, client relationships, and political pull. The firms provide the familiarity with the class action device and the resources to ensure some measure of equality of arms vis-à-vis corporate adversaries.42

Nonetheless, the proliferation of lawyers involved in ATCA-style litigation has given rise to concerns about coordination and oversight. Given the indeterminacy of the ATCA's reach and the weak constraints on initiating suit, activists and entrepreneurs of various stripes have seized on the statute's potential to serve as the basis for suit for any number of grievances that may be styled as "torts in violation of international law."43 Thus, in certain instances, the statute has become a vehicle for advocacy groups to advance their more narrow political agendas through cause-based litigation44 or for plaintiffs' attorneys to pressure deep-pocketed defendants.45 To date, the courts have proved themselves capable of rigorously evaluating the underlying claims46 to ensure that they are grounded in international law47 and are consistent with domestic and international law immunity principles. Even where unmeritorious ATCA-style cases are disposed of by the courts in the same way that they dispose of other weak cases that come before them, the notoriety of several high profile suits has nonetheless given rise to a perception that ATCA-style litigation is proceeding without adequate limitations, increasingly motivated by less than meritorious impulses, interfering with U.S. foreign relations and trade opportunities, and, accordingly, is less worthy of approbation. Further, cases advancing weak or frivolous claims may threaten to trivialize more worthy cases. Pleas for a cautionary approach have even begun to be heard from seasoned ATCA lawyers who, as a result of this more decentralized development of ATCA jurisprudence and the emerging diversity of lawyers engaged in this work, have difficulty keeping track of all the cases that have been filed to date48 and must consider whether and how to influence shaky cases in order to protect case precedent and the integrity of the enterprise. It remains to be seen to what extent the Supreme Court's guidance in Sosa will curb some of the more controversial cases.


As ATCA-style jurisprudence has matured and proliferated, it is increasingly possible to gauge the impact of these cases, even if only through individual case studies and anecdotal evidence. The remainder of this Essay will begin to consider this impact along a number of dimensions to reflect the multifaceted objectives of the human rights movement. The most obvious objective of litigation is the enforcement of human rights norms within the legalist paradigm of the application of a rule of law backed by sanctions. While this level of enforcement has remained elusive, litigation has achieved other objectives of the human rights movement, including the rehabilitation of victims and the empowerment of victimized communities, the establishment of accountability for rights violations, the creation of enforceable expectations of behavior, the clarification of applicable norms, the denunciation of violations, and the fostering and strengthening of a vigorous human rights movement worldwide.

A. On Plaintiffs and Their Communities

From the perspective of individual plaintiffs, the human rights edifice has as an express goal the rehabilitation of the victims of human rights abuses. Where ATCA practitioners adopt a client advocacy approach to litigation, human rights cases in U.S. courts can have a profound impact on victims of human rights violations and their communities.49 Participating as a plaintiff in human rights litigation can restore and promote a sense of agency-the impression that we exercise some control over the processes and events that affect us-especially when that sense was destroyed by the very conduct that is the subject of the suit. Beyond physical harm, the human rights abuses at issue typically involve protracted denials of dignity, liberty, choice, personal integrity, and autonomy, and the mere act of reconceptualizing oneself as a holder of rights can offer a sense of empowerment.50 Such litigation presents opportunities for corrective justice and provides victims of human rights violations with "an exercise in self-determination"51 that inverts the status of victim and perpetrator. By contrast, pervasive impunity can exacerbate the dignitary harm caused by torture and other abuses by perpetuating feelings of injustice, fear, and vulnerability, especially where abusers live in the same communities as their victims.52

In addition, litigation provides victims with access to a narrative forum53 that enables the victim to name her experience54 and to situate it within a larger policy or practice of repression.55 Tort rhetoric in particular invites the attribution of legal responsibility and moral blameworthiness, thus contributing to the alleviation of feelings of guilt that may arise from past participation in political activities, "allowing" oneself to be captured, capitulating under interrogation, and ultimately surviving. These discursive processes of "naming, blaming, and claiming"56 are important features of civil litigation (as compared with criminal prosecutions)57 and are especially compelling in ATCA-style litigation where the responsible government may have denied an effective remedy, or even the very existence of violations, and silenced the voices of victims through force or intimidation. In addition, being accorded fair procedures before a neutral and respectful decisionmaker may provide a surrogate for apology, repentance, and contrition from responsible parties58 and a "controlled substitute for vigilantism"59 or reprisals. The very process of a court determining the validity of a claim will force an examination of the historical record,60 even if the outcome is ultimately not successful.61 This judicial record can then enhance and further focus the fact finding and reporting efforts of human rights documentation groups.62

Where it is successful, litigation also offers the promise of a reordering of one's worldview of good and evil that ascribes new meaning to the traumatic experience itself. Thus, litigation can generate a form of collective memory, particularly in the face of counternarratives that would deny the existence of violations or portray victims as subversives, deserving of punishment.63 Litigation also provides victims with an opportunity for "history making," although this aim of impact litigation generally must be balanced with the trial's fundamental purpose of reaching a fair legal judgment.64

While the cathartic power of litigation is often extolled,65 it has not been adequately tested empirically.66 It is clear that litigation is not therapy. Parties to a civil suit are constrained by procedural and evidentiary rules and the imposed order of other judicial rituals, and plaintiffs may find conforming their testimony to justiciable legal claims and admissibility rules to be limiting, illegitimate and alienating. In particular, plaintiffs may not be allowed to reenact their whole story or to emphasize aspects that are the most important to them but are "irrelevant" from the perspective of the legal process. Thus other fora - the press, psychotherapy, reflective writing, support groups, truth commissions, etc. - may be better suited for victims to provide a full narrative account of their personal history and to establish broader truths.67

In addition, the potential for litigation to retraumatize is ever present. Litigation is inherently adversarial, and defendants are entitled to defend against the accusations leveled at them. In practice, this may involve attempts to discount a plaintiffs account through rigorous cross-examination and the presentation of contrary or impeaching evidence. In particular, where victims do not relate the memories of their experiences in a consistent sequential manner, which is often the case with victims of extreme trauma,68 a defendant's aggressive cross-examination on credibility and accuracy can do real damage.69 In addition, the plaintiff must be prepared to lose his case, regardless of the truth of the harm suffered, which can create deep anxiety over the course of the suit and upon the announcement of a negative verdict.70 Finally, although some measure of anonymity may be available,71 civil litigation forces plaintiffs into the public eye, which can render them and their loved ones particularly vulnerable to negative social ramifications or even retaliation, especially where abuses are ongoing.72 Where plaintiff's counsel adopts a client-centered approach and remains attuned to his clients and their evolving perception of the legal process, negative responses to litigation can be identified and addressed through counseling and other interventions. The attorney can enable the plaintiff to situate her lawsuit within a larger movement toward accountability, so that "[h]er particular battle becomes part of a larger, ongoing struggle to impose the rule of law on the arbitrary tyranny of the strong."73 At all times, counsel must be sensitive to the fact that litigation is painful and difficult, even where successful.74

In most personal injury suits, the enforcement of the applicable legal right is achieved through the attainment and execution of a money judgment quantifying the established harm. Thus, the traditional relief requested in ATCA-style cases was retrospective, although complaints and judgments often contained a tacit acknowledgment of the incommensurability of the harm caused by the alleged human rights violations.75 A damage award-even where unenforced-as a medium of social meaning marks a "spiritual victory"76 over an oppressor, recognizes concrete damage to individuals, and is symbolic of a plaintiff's loss. Where an award can be enforced, money damages provide economic support to enable rehabilitation and reintegration into society and confers a measure of social standing on plaintiffs.

At the same time, the illusion of claim equivalence created by a damage award may ultimately alienate rather than relieve victims of rights abuses. Human rights violations involve not just wrongful injury to material worth-harm that can be relatively easily quantified and compensated for-but also moral injury deserving of nonmonetary responses, such as acknowledgment, retribution and apology. Indeed, the quest for moral accountability in the form of apology or repentance may be more pressing for victims than economic accountability.77 Plaintiffs may resent the "commodification" of their experience when forced to quantify in financial terms the harm caused by torture or the extrajudicial killing of loved ones.78 Similarly, the introduction of money damages may distort some of the symbolic value of these cases and splinter a sense of solidarity among plaintiffs by creating competition for awards among different victims and subclasses79 and by raising concerns about distributive justice.80 Finally, a money damage award without any prospect of enforcement or prospective change may ultimately not satisfy retributive impulses and may actually undermine victims' faith in real justice or reform, thus highlighting a latent fallacy of legal liberalism, which posits that once rights have been granted, civil and political equality will naturally follow.81

Taking the perspective of a plaintiffs community, while individual suits involve the allegations of only the named plaintiffs, such suits often manifest a representational quality82 and as such are capable of accommodating a more contextual and comprehensive consideration of repression beyond that suffered by the body and to that suffered by the body politic. This is particularly true where the plaintiff can present evidence that she was harmed as part of a policy or practice of human rights violations against similarly situated individuals or where large scale human rights abuses amounting to genocide or crimes against humanity were committed and are proved.83 A favorable judgment or verdict in such situations offers a public and official acknowledgement of rights, the stigmatization of violations, a measure of accountability, and a symbolic break with the past. Other victims-of the incident or regime in question and beyond-can experience these dignitary functions of litigation vicariously and can enjoy the reordering of social relations brought about by a finding of liability in an ostensibly bilateral case.84

Where litigation proceeds as a class action, members of a community subject to abuse theoretically have the opportunity to participate in litigation more directly. However, the degree to which involvement in a class provides an opportunity for class members to experience the dignitary benefits of litigation will depend on class counsel's willingness and ability to involve the class members and the broader community in the suit. This requires, for example, maintaining regular communications with members of the class, or their more informal representatives, to apprise them of significant developments in the case and canvass their opinions about the direction of the litigation.85 Community involvement and impact in both individual and class actions can be enhanced where plaintiffs and their lawyers are committed to involving members of the plaintiff's community in litigation, through press work in the country where abuses occurred, the dissemination of educational materials, participation in speaking engagements and the trial itself, community outreach, partnerships with local NGOs and community leaders, and the creation of contact lists for case updates and trial reports. Likewise, lawyers and NGOs can develop and coordinate legal strategies with representative groups and local leaders within the target country's civil society who are also concerned with human rights and the rights of victims and are in direct contact with community members.86

The potential for litigation to promote these dignitary and truth-telling functions among plaintiffs and their communities operates in varying degrees in the various models of human rights litigation. These processes are most salient in the individual actions in which the plaintiff works collaboratively with counsel to frame and prosecute her case and where lawyer and client share a mutual political commitment to the suit.87 As a case becomes more representational, as with a class action, or where a client-centered approach is lacking and the plaintiff is relegated to a more passive role, as may be the case with the mass tort approach, these intangibles may be inoperative. In particular, the appearance of litigation techniques developed in other forms of entrepreneurial litigation (where the attorney develops the case and then trolls for nominal "clients")88 in ATCA class action litigation threatens to trivialize the role of victims of human rights violations in the litigation process.89

In addition, as ATCA litigation becomes more doctrinally focused, representational, and pecuniary, relations between lawyers and clients become more attenuated and the risk of conflicts of interest arises. As has been recognized in the civil rights field, where impact litigation is ideologically motivated, the lawyer's fealty to a particular political agenda may diminish the client's voice.90 This process may be subtle and unintentional, as attorneys may overlook the growing divide between their goals and their client's interests.91 Likewise, as the pecuniary potential of these cases increases, so too does the risk of a proliferation of poorly-framed "strike" suits against U.S. multinationals92 and collusive settlements that provide lucrative attorneys' fees and broad preclusive effects at the expense of the plaintiffs' rights to an adjudicative process.93 The regulatory system governing class actions may not be vigorous enough to protect against these conflicts in the human rights context, especially where members of the class are dispersed and unorganized such that effective monitoring of class counsel and representatives is impossible.94

B. On Defendants and Potential Defendants

To date, ATCA-style litigation has proved limited in its ability to produce concrete distributive justice. Many ATCA-style cases have generated justifiably staggering judgments. However, these results have exerted a limited impact on defendants' "bottom line" because very few ATCA judgments have been executed upon in any meaningful sense.95 The persistent elusiveness of an enforceable damage award in ATCA-style litigation renders the disjuncture between rights and remedies in human rights litigation its most stark. As discussed elsewhere in this Essay, the impact of ATCA-style cases on defendants can be measured by more than simply the percentage of favorable judgments that have been obtained and executed upon. That said, there is no doubt that the availability of collectable judgments will add to the rehabilitative, punitive, and deterrent impact of these cases. To that end, the advent of the corporate cases has generated a new optimism about the possibility of achieving an economic recovery for victims of human rights abuses. Several cases in particular are poised to commence trial after surviving motions to dismiss and summary judgment.96 In addition, cases brought against individuals with strong economic and personal ties to the United States may eventually result in economic recovery for plaintiffs.97

Beyond monetary relief, ATCA-style cases are increasingly seeking prospective injunctive relief, but the ATCA's full potential here has yet to be established. While in theory cases against foreign officials or state actors are amenable to such relief, such an effort would be at best a purely symbolic exercise and at worst a hopeless gesture given the difficulties of extraterritorial enforcement and the dictates of the principle of comity.98 In contrast, the cases against MNCs better reflect some of the conditions for which equitable relief is appropriate and potentially efficacious: where the entity to be enjoined is within the court's jurisdiction, there are ongoing violations, and there is the threat of irreparable harm (that is, where there is extensive destruction of the natural or cultural environment).99 To a certain degree, U.S. courts are already experienced with this type of extraterritorial enforcement through transnational commercial litigation.100 The flexibility inherent to working in equity enables courts to balance the interests of, and constraints on, the parties in fashioning a decree.101 To be sure, courts are reluctant to issue an injunction that cannot be enforced,102 and an unenforceable decree might undermine the legitimacy of the principle and of the judicial process more broadly. On the other hand, enforceability is more likely where key corporate decisions and policies are developed in, or issued from, this country,103 or where parent companies exercise control over foreign subsidiaries.104

Accordingly, plaintiffs in the corporate cases have increasingly sought judicial directives governing MNCs' foreign investment policies, relations with their host governments, offshore production arrangements, project security measures, environmental policies, and labor relations. This approach inevitably envisions a more lasting role for courts in the implementation and supervision of remedies geared toward future behavior and invites courts to address the social and economic conditions in developing countries that threaten human rights values. Thus, the potential to obtain injunctive relief against MNCs may provide a way to indirectly reform governmental policies, where MNCs are compelled to condition investment on improvements in human rights conditions in response to a decree or in order to avoid vicarious liability.

For example, in Doe v. Unocal, plaintiffs sought injunctive relief in the form of an order compelling Unocal to terminate its participation in a joint petroleum enterprise with the government of Burma/Myanmar.105 Plaintiffs' prayer for injunctive relief was adjudicated in connection with their motion for class certification pursuant to Rule 23(b)(2).106 The court ruled that the plaintiffs had not demonstrated that the relief sought would eliminate the abuses alleged, because it was the government that was committing the abuses, other oil companies would simply take Unocal's place upon the company's withdrawal, and the construction of the pipeline was substantially completed.107 In this case, injunctive relief might have been more readily available had plaintiffs sought to compel conduct more capable of judicial oversight and concerning Unocal's ongoing activities in Burma, such as the creation of a corporate monitoring process to guarantee that forced labor and forced relocation would not be employed in finalizing or maintaining the pipeline project or an injunction against using Burmese military or police forces to provide pipeline security.

As jurisprudence under the ATCA has become more robust, the genuine threat of legal entitlement increasingly presents the necessary predicate for settlement negotiations. To be sure, some human rights advocates and victims will undoubtedly insist on a full trial on the merits in order to provide a forum for the exposure of rights violations and to create a public record of abuses. In addition, defendants may resist settlement out of fear that it will be perceived as a concession of responsibility for human rights violations. That said, given the arrival of class action attorneys on the human rights litigation scene, settlement is now more than ever a possible outcome for ATCA-style cases.108 Indeed, in a momentous development, Unocal Corp. recently settled an ATCA case arising out of its pipeline project in Burma109 for a reported $30 million, which will go to named plaintiffs and the creation of a fund to improve living conditions in the region.110 Likewise, many of the historical justice cases arising out of the abuses of World War II led to comprehensive settlements,111 which are no doubt a model for other more recent historical justice cases seeking apartheid and slavery reparations from corporate defendants.112

Where lawyers are attuned to the interests of their clients, the settlement of ATCA-style cases can generate some of the multifaceted results victims of human rights abuses may seek from impact litigation. In particular, settlement agreements can be crafted to involve more than money damages-which may simply enable defendants to internalize the "costs" of rights abuses-and to institute protections against repeat abuses. For example, U.S. retailers contracting with manufacturers on Saipan recently created an $8 million fund as part of a settlement of claims brought against them under the ATCA and other domestic laws to finance a monitoring program to ensure compliance with labor laws, provide partial damages, fund public educational programs, and defray litigation costs.113

Even short of a full settlement, the commencement of litigation may make possible discussions between parties that were foreclosed by power inequalities in place prior to the filing of suit. Indeed, the very filing of the suit can provide a "foot in the door" to communicate with a defendant corporation that may have otherwise dismissed the demands of victims and activists. However, where the legal entitlement is insufficient, defendants may have no incentive to negotiate with plaintiffs and may instead become more entrenched in their opposition to the suit. For example, in the slavery reparations suit, defendants were able to evade mediation, which plaintiffs no doubt sought as a step toward settlement. In denying plaintiffs' request for mandatory mediation, the court noted that even if it were empowered to order mandatory mediation, the claims at issue were not likely to be resolved through such a mechanism.114

Apart from these formal outcomes, it is possible to conceive of more intangible impacts of ATCA-style litigation on defendants and potential defendants. An increasingly important goal of the human rights movement is to deny impunity to human rights violators for their actions.115 A trial provides the ultimate vehicle for individual accountability.116 Indeed, the very act of filing suit against an alleged perpetrator provides a measure of accountability for rights violations. At a minimum, defendants' lives are disrupted while they are forced to either defend their actions, often at considerable cost, or accept a default judgment. Of the individual defendants sued in ATCA-style litigation, only a handful have ultimately remained in the United States.117 Even if defendants can return to their countries of origin, the existence of a lawsuit against them in the United States can complicate their reintegration and ensure perpetual stigmatization118 as an alleged or adjudicated human rights abuser.119

Civil litigation in the U.S. can never provide a full accounting for human rights violations worldwide, because certain defendants will remain beyond the reach of U.S. courts.120 Thus, human rights cases in U.S. courts will inevitably remain exemplary. While cases involving single defendants may not entirely encapsulate the systemic and complicitous nature of human rights atrocities,121 they nonetheless "loom large in significance as markers of accountability."122 A plaintiffs verdict in the civil context assigns legal and moral responsibility for violations, even where a default is obtained or the judgment remains unexecuted. Thus, each individual case has the potential to chip away-one defendant at a time-at the edifice of impunity that has until relatively recently characterized human rights enforcement.

This accountability rationale is different from, and indeed more modest than, a traditional deterrence rationale for litigation. Without some measure of deterrence-such as dissuading those who might perpetrate such atrocities in the future-the effect of a plaintiffs judgment may be limited to retrospective condemnation with little prospective effect. In the human rights context, the deterrent effect of ATCA-style litigation remains speculative.123 Even at the level of the specific deterrence, there is no guarantee against recidivism by a particular perpetrator, especially given the unavailability of incapacitation by incarceration. Although they are high profile, ATCA cases may be too episodic to exert a more general deterrent effect in the classical sense where defendants "weigh" the costs of injury against the "perceived" benefit of the prohibited activities.124 As a result, it might be a stretch to postulate that, at this point in time, the existence of the ATCA or the potential to be sued in the United States exerts any sort of generalized deterrent function on potential human rights abusers.125 And, even assuming the most robust enforcement, these cases involve extreme conduct that is perhaps less amenable to formal processes of deterrence.

That said, the threat of suit undoubtedly registers some impact on potential defendants and abusers. At a minimum, this threat will keep some rights violators from traveling to the United States and may prevent this country from operating as a safe haven for abusers to raise or invest funds visit family members, obtain educational opportunities or medical care, vacation, or retire.126 Political leaders, who may be more likely to calculate the costs and benefits of ordering or encouraging rights abuses, may be more susceptible to processes of deterrence if they are concerned about preserving their political viability. The threat of suit may also exert reformative pressure on MNCs-many of them publicly traded-to adjust their behavior to avoid suit.127 Indeed, a cottage industry of sorts has developed to advise corporations on doing business in repressive political environments without incurring potential human rights liability.128

The reverberations generated by a single damage award against a corporate defendant or costly settlement may be enough to provoke reform across a number of industries and even persuade multinationals to avoid relationships with repressive governments entirely.129 Such an award will operate as a form of judicially-imposed "secondary sanction"130 that may compel foreign governments to improve their rights records in order to attract continued investment and involvement by multinationals.

As a worldwide system of accountability for rights violations becomes more established, comprehensive and rigorous, the deterrent power of international human rights law becomes more realistic. Indeed, international, quasi-international or hybrid, regional, and domestic judicial systems are increasingly working in tandem to ensure that individuals are held legally accountable for their actions and victims have fora in which to seek meaningful legal redress.131 This "community of courts"132 is gradually establishing a complementary division of labor, whereby international and quasi-international tribunals prosecute high-level defendants accused of mass crimes and rely on national courts to prosecute (civilly or criminally) the lesser perpetrators within their jurisdictional reach.

To be sure, retributive goals may be better achieved through criminal processes and penalties, where defendants are more directly subject to the power of the state, than through civil processes. Nonetheless, domestic civil litigation in the U.S. plays a part where criminal prosecutions are not feasible or forthcoming and where perpetrators are subject to personal jurisdiction here. By exposing the whereabouts of abusers, civil suits can spur or shame the U.S. government into invoking administrative133 and/or criminal remedies against identified perpetrators.134 For example, information gathered in connection with civil lawsuits has assisted the Bureau of Immigration and Customs Enforcement (formerly the Immigration and Naturalization Service) in pursuing actions against abusers for visa fraud.135 Likewise, the commencement of civil litigation in the U.S. can trigger similar judicial responses in the home countries of defendants.136

C. On the Human Rights Corpus

Human rights cases under the ATCA generate a form of declaratory relief either explicitly, where such relief is expressly sought by plaintiffs,137 or implicitly, through norm enunciation and confirmation.138 By invoking international human rights within the traditional legalist paradigm, cases brought under the ATCA can transform the abstract and at times hortatory rights cataloged in the various international declarations, covenants and treaties into enforceable legal claims and in so doing give concrete meaning to human rights values139 and contribute to long-term processes of moral inculcation.140 This expressive function was particularly important in the early life of these cases, where the justiciability of the norms themselves was uncertain.141 This transformative potential remains of value, even apart from formal outcomes, because it may advance broader strategic goals, such as laying the foundation for future suits142 and codification efforts, providing a more comprehensive and concrete set of guidelines for conduct, conveying a legal consensus regarding appropriate behavior, and providing a basis for negotiation from legal principles.143 Additionally, adjudications involving the personal testimony of victims and concrete facts can add meaning to rights framed in general or abstract terms - such as with the prohibitions against torture and cruel, inhuman, or degrading treatment that have been the subject of intense discussion in the wake of the Abu Ghraib revelations.144 Thus, judicial pronouncements concerning overseas abuses contribute to the domestication of international norms that can be applied to local violations and aid in the interpretation of U.S. statutes.145 Even where cases are dismissed on other grounds, a court's discussion of the scope or content of particular norms is a "norm-affirming event"146 that may avow plaintiff's moral claims even where legal claims are found to be not actionable.147 This function of human rights litigation finds affinity in the Brown paradigm; the first Brown opinion simply announced the principle that separate was inherently unequal, without mandating a remedy. Indeed, given the ambivalent results of the desegregation/integration experiment occasioned by Brown, the announcement of this principle may be Brown's most lasting achievement.148

Litigation's emphasis on those rights that are deemed justiciable has the potential to influence, and potentially distort, the normative development of the international human rights corpus. U.S. courts adjudicating ATCA cases have consistently identified a narrow category of civil and political rights that constitute "torts in violation of international law" as is required by the statute.149 In so doing, the courts have determined that other civil and political rights and most economic, social, and cultural rights (ESC)-such as the right to a clean environment, to health, or to cultural expression-are not amenable to judicial enforcement. To date, finding defensible and justiciable "proxies" for ESC rights150 has proven unsuccessful.151 This will inevitably limit the ability of ATCA-style suits to reach destructive corporate behavior, because these rights are most often implicated by corporate policies and practices in developing countries.152 Nonetheless, plaintiffs continue to file such claims, which has entrenched a series of negative rulings that may delay or preclude the future justiciability of these norms.153 In addition, the human rights corpus has its roots in political liberalism and its preoccupation with the protection of the autonomous individual against incursions by the state. Thus, many human rights norms are defined or framed in terms of state action.154 As a result, human rights litigation cannot reach certain forms of violence emanating from private actors, which in certain contexts provides a greater threat to individuals than state-sponsored violence.

This privileging by the litigation process of certain human rights over others has the potential to subordinate ESC rights that may be of equal or even greater concern to plaintiffs, who may desire above all a greater share in the development potential of their countries. This emphasis may also mask the extent to which rights violations are intertwined with-or a product of-underdevelopment, economic exclusion, discriminatory resource allocations, neocolonialism, and corporate exploitation.155 Thus, ATCA-style litigation may be powerless in addressing the root causes of rights violations or in promoting a social justice agenda that may do more toward improving the lives of victim communities on a day-to-day basis and that thus may be a higher priority among plaintiff classes.

A reliance on litigation to enforce the corpus of international human rights also invokes a more fundamental critique about the efficacy of a rights-based discourse in achieving social change.156 According to this perspective, not all reform goals "can be presented in the name of rights."157 The rhetoric of rights forces a desiccation and abstraction of real life experience by obliging plaintiffs to mould their lived experiences in terms of available legal rights and remedies. In so doing, plaintiffs may lose sight of real objectives as their visions for the reform and rehabilitation of society become "trapped" in the language of law.158 Given the subordination of ESC rights in particular, plaintiffs may only advance a limited number of atomistic claims, which may be at odds with how communities view themselves and the harms suffered.159 Indeed, potential plaintiffs may care more about damage to their communities' ways of life, a concern that ATCA litigation cannot accommodate except minimally through the class action mechanism, which is an imperfect arbiter of group rights. Nonetheless, victims often view their experience in terms of a denial of rights,160 and thus the rhetoric of rights possesses a powerful symbolic meaning for plaintiffs and other victims.161

D. On Other Processes of Social Change

The impact of human rights litigation in the United States in countries where abuses occur also remains unproven. Such litigation inevitably proceeds alongside other processes of social change, and the relationship between the two is a complex one-at times synergistic and antagonistic. However, anecdotal evidence suggests that the positive impact of such cases on the expansion of the human rights movement and in countries where abuses have occurred and beyond is growing.162

Litigation as a visible, public, and "newsworthy" phenomenon can serve an educative function, by teaching the general public about international norms of behavior, calling attention to injustices, persuading changes of opinion, provoking a public outcry, and mobilizing grassroots campaigns.163 Within the U.S., press accounts of the extent of repression elsewhere, and even direct participation in the judicial process by individual jurors, can generate a societal empathy for human rights victims,164 thus contributing to a domestic human rights consciousness and the development of a political constituency supportive of an ethical foreign policy.165 Greater domestic attention to rights abuses occurring overseas will increase pressure on the U.S. government to condemn abuses and bring its influence to bear on repressive governments.166

While ATCA-style litigation takes place in the United States, the audience for these suits-and thus their educative reach-is international. Even when pursued in a foreign forum, litigation can provide a community mobilizing and organizing tool for victims of rights violations and their supporters in the implicated country and empower local activists with "hope and inspiration"167 by changing "the limits of the possible."168 Litigation here can also lead to the development of transnational advocacy networks by connecting exile communities with groups in the target country.169 In the class action context, the process of defining, providing notice to, and communicating with the class can identify, activate, and join individuals who have been similarly injured and foster a sense of solidarity, shared identity, and political power. Especially where organizations representing victims or working to enforce human rights in the target countries initiate or support litigation here as part of a coordinated strategy,170 litigation can bolster domestic and grassroots efforts to address ongoing human rights violations. Thus an opportune case with good press and other penetration in the implicated country171 can provoke civil deliberation about rights abuses172 and catalyze or otherwise undergird moral, legal, and political challenges to mechanisms that may have been put in place-such as amnesty laws-to shield perpetrators from liability for past abuses in their home countries and end a conspiracy of silence about abuses.173

Thus, litigation here can bring about a "breakthrough moment"174 in the target country and contribute to societal processes of communal rehabilitation, forgiveness, accountability, and reconciliation that underlie other efforts at transitional justice.175 In these ways, the commencement of litigation, even in a foreign forum, can create "cascade effects" in the nation where the abuses occurred and beyond that may signal more durable social change.176 These processes may only be effective, of course, where the foreign state is receptive to them, such as where political power has shifted away from a repressive government or where a domestic human rights constituency has gained a measure of political power and momentum.177 By contrast, where abuses continue, the potential for an adversarial process to bring about reconciliation or repentance is more limited.

A complex dialectic exists between litigation and legislative processes. It has been long theorized that majoritarian victories through the political process may be more effective than judicial victories in provoking the kind of "cultural shifts" or transformation of norms and practices necessary to invoke more lasting social change.178 That said, critiques of using litigation to provoke systemic change often assume an ability to participate effectively - and ultimately to win - in the legislative arena,179 which may not be the case in the human rights context. Indeed, individuals often turn to the courts where legislative bodies are unresponsive or to correct pathologies in the political process.180 Litigation in the United States can thus provide an outlet for political action where legislative options for seeking reform in countries where violations are occurring are unavailing. Thus, litigation in the United States presents a more viable option where no political constituency exists in implicated countries, as where victims of human rights violations are members of minority groups without effective political representation or capacity. Litigation here is also available where political institutions in the country in question are ineffective or lacking entirely181 or where it is simply too dangerous for victims and their advocates to press claims politically or legally.182 Indeed, where people are dying, it is unreasonable to wait for domestic political processes to function if other outlets to expose abuses are available.

Where political processes are operative, an opportune lawsuit may create an environment where legislative action and more broad-based public engagement and discourse become possible, like an "icebreaker through a frozen sea."183 The reparative legislative response to the coram nobis cases brought on behalf of survivors of the WWII Japanese internment in the United States184 provides a model for the type of political leverage a lawsuit can generate,185 although such outcomes may be equally attributable to political expediency or processes of interest convergence.186 Litigation in the United States can also prompt more systemic interventions by other branches of government in implicated countries and provide "cover" for progressive members of society and in government to push for reform internally.187 Litigation in one forum may also generate changes in foreign policies elsewhere toward repressive states. Indeed, the Filártiga model has been cited in connection with burgeoning efforts to hold human rights abusers liable in domestic courts in Europe and elsewhere.188

For example, several groups of plaintiffs filed class action suits in the United States against Texaco alleging environmental harm in Ecuador and Peru in connection with its oil extraction projects there. The cases were dismissed on comity and forum non conveniens grounds, which involved a determination that the courts in Ecuador could handle the suit.189 Originally, Ecuador opposed the suit, but after a change of government, it sought to intervene in support of plaintiffs.190 On appeal, the second Circuit vacated and remanded, in part on the grounds that Texaco was not required to submit to jurisdiction in Ecuador and because the district court had insufficiently considered the government's change of position vis-à-vis the litigation.191 On remand, the case was again dismissed on forum non conveniens grounds.192 The suit is currently in trial in Ecuador.193

Litigation in United States courts also provides an outlet for U.S.-based human rights activists, given that domestic legislative strategies to address violations abroad are limited and often of limited efficacy.194 Victims and their advocates may not constitute a viable constituency or may-by virtue of their refugee or immigrant status-lack the political voice or economic resources to be heard effectively. To the extent that victims can mobilize political capacity here and partner with sympathetic supporters,195 calls for trade sanctions and embargoes, contingent economic aid, and diplomatic denouncements often go unheeded and, where implemented, often manifest varying degrees of effectiveness.196 With respect to domestic legislation that may regulate the conduct of U.S. MNCs operating abroad, legal action can "counterbalance" the power certain defendants may exercise over political processes.197 For example, Sweatshop Watch initiated litigation in the Northern Mariana Islands concerning United States retailers' labor practices there after efforts by unions to utilize political strategies had failed.198

Although litigation can provoke and promote other processes of social change, it can also inhibit the development of, deflect attention and resources away from, or even undermine other strategies for social change that may be more efficacious or durable. These alternative strategies include reparations strategies through the political process;199 direct action; transnational advocacy in countries where abuses are prevalent;200 grassroots educational campaigns; traditional human rights advocacy based upon fact-gathering and shaming; the development of monitoring bodies and international regulatory standards, such as environmental or labor codes of conduct for extraterritorial activities;201 and the creation and promotion of international institutions.202 The technical, rarified and inaccessible nature of litigation may do little to contribute to the growth of grassroots social movements in certain contexts and communities, especially where individuals are not accustomed to invoking judicial processes to bring about social change.203 Likewise, lawyers may actually displace natural leaders within community groups, leading to the disempowerment, and even demise, of the group.204 In addition, litigation (and its attendant legalisms such as standing rules, statutes of limitation, or justiciability doctrines) may diffuse political or moral claims rather than empower potential political constituencies. Indeed, litigation in the United States may ultimately contravene or undermine the strategies of local activists where it is not part of a campaign at the grassroots level in the targeted country.

For example, a number of lawsuits were filed recently on behalf of African-American descendants of slaves and former slaves against companies allegedly unjustly enriched by the practice of slavery during the antebellum period by, for example, loaning money to slave traders and owners, utilizing slave labor, and insuring slaves as property for slaveholders.205 Defendants jointly sought dismissal on grounds that plaintiffs lacked standing, the statute of limitations had expired, the plaintiffs had failed to state a claim upon which relief could be granted, and the case presented a nonjusticiable political question.206 In dismissing the case without prejudice, the court "in an abundance of caution" meticulously affirmed each of defendants' arguments for dismissal.207 With respect to defendants' defense on standing, for example, the court found plaintiffs had not established a link between the defendants and the alleged harm and that plaintiffs did not have a personal stake in the dispute or a particularized injury.208 At the same time, when ruling on defendants' political question defense, the court determined that the issues raised by the complaint were best resolved by the representative branches of government.209 It remains to be seen whether these rulings will bolster the reparations movement's210 political claims or provide juridical fuel for opponents, but it is clear that the political grounds have indelibly shifted in light of the court's ruling.

The high-profile nature of ATCA-style litigation creates the potential to generate legislative, executive, and other "backlash"211 that might nullify gains made in litigation. Indeed, it is apparent that the more ambitious applications of ATCA-style litigation have perhaps subjected the ATCA to new political vulnerabilities. In particular, opposition to human rights litigation in United States has crystallized along two dimensions, with the two primary foes to a certain degree working in tandem. First, the corporate cases have mobilized a powerful constituency of multinational corporations who have circled the wagons in defense of their brethren. Various corporate consortia have filed amicus briefs attesting to difficulties, or the increased costs, of conducting business abroad where human rights litigation is a risk212 and have initiated at least preliminary discussions about potential legislative "reform" of the ATCA.213 Second, the Bush administration, in a change in executive policy toward human rights litigation in United States courts,214 has intervened in a number of cases that in its estimation conflict with, or at a minimum complicate, U.S. foreign policy concerns, as where officials or heads of state from allied or powerful countries are sued.215

Backlash may also occur in the countries that are the subject of suit.216 In particular, U.S. judgments may be resisted by individuals in power as a form of judicial imperialism or neocolonialism, especially when default judgments are obtained.217 This, in turn, may actually enhance the stature of defendants and cloak them in the mantle of the political martyr. Indeed, "[t]he possibility of resistance matters, because the events that have given rise to the lawsuits in question remain largely under the control of foreign governments and beyond the reach of U.S. courts."218 For example, the apartheid litigation219 has generated significant opposition within high political circles in South Africa,220 although the cases have generated some NGO and popular support.221 Where suits proceed far from the events in question, a foreign judgment may not carry the moral legitimacy necessary to convey opprobrium or bring about the internalization of the norms expressed.222


Human rights cases brought in United States courts evince a faith in the power of "impact" litigation to achieve goals that transcend the dispute between individual litigants. In practice, it is clear that human rights litigation produces important first order results, especially in the realm of corrective justice for victims, which may be operative regardless of formal outcomes. These results are the most tangible on the micro scale and become more diffuse and speculative as the lens moves farther from the immediate parties. Thus, human rights litigation has empowered individuals even where it has not necessarily constrained perpetrators. The present limits on what human rights litigation can achieve beyond the re-ordering of relations between the two parties and toward the reform of state practices should not overshadow what these cases can achieve, because these results are worthy of praise and duplication. These limits do, however, caution against adopting an unreasonable faith in the power of litigation. That said, the increasing potential of such litigation to contribute to a burgeoning movement toward accountability for rights violations pursued by complementary state and international institutions is tantalizing.

Thus, litigation must remain one component of a multifaceted strategy toward the enforcement, broadly defined, of human rights norms. Practitioners must be attuned to whether political, social and economic forces have pushed a particular society to a point where litigation in a foreign forum can make an impact. In addition, practitioners must remain sensitive to the way in which litigation in a foreign forum is embedded within a broader human rights strategy of a particular community. Thus, litigation may be able to mobilize victims of human rights violations or support a campaign against a particular company or practice at the grassroots level, especially where activists on the ground are consulted on whether and how human rights litigation in the United States might advance their domestic strategies and goals. By contrast, these "cascade effects" may be inoperative where litigation proceeds in a foreign vacuum. A focus on litigation here to the exclusion of other processes of social change has the potential to marginalize the voices of victims of human rights abuses and derail other potentially efficacious strategies for social change. To the extent that human rights cases are pursued by attorneys from outside of the human rights movement, human rights attorneys and activists must engage with counsel to ensure that human rights values are brought to bear on the process.

Even where systemic change remains elusive, it must not be forgotten that small victories are meaningful.223 This brings us back to the client advocacy model of public interest litigation. In striving for greater impact, practitioners must not neglect the client. In many respects, an enduring value of human rights litigation is the transformative potential of litigation on individual participants. Indeed, the highest ideals of the law can in many respects be achieved through good client advocacy: the representation of persons in pain, one individual at a time.

[Author Affiliation]

Beth Van Schaack*

[Author Affiliation]

* Assistant Professor of Law, Santa Clara University School of Law. The author has worked on a number of human rights suits in United States courts and is a legal advisor to The Center for Justice & Accountability, a nonprofit human rights law firm in San Francisco, CA. The author is grateful for the support of the School of Law Faculty Scholarship Support Fund and for the comments and insights of Carolyn Patty Blum, Sandra Coliver, Terry Collingsworth, Matt Eisenbrandt, Deena Hurwitz, Ralph Steinhardt, Beth Stephens, and Stephanie Wildman on this project. The author is also indebted to Roy Rosenthal and Kimberly Pederson for research assistance.