Human Rights Violations as Mass Torts: Compensation as a Proxy for Justice in the United States Civil Litigation System
Cabraser, Elizabeth J., Vanderbilt Law Review
The landmark human rights cases that have been litigated to judgment or settled in the United States' federal court system during the past twenty years have borne witness to the existence and inhumanity of the massive genocides that marred the twentieth century. These cases, notably the Marcos Human Rights Litigation, the Swiss Banks and German Holocaust cases, and the pending Talisman energy litigation, have created permanent records, and in many cases substantial compensation, for wrongs that might otherwise go unremembered, unconfronted, and unredressed. The United States courts have provided an important, perhaps unique, forum for both formal recognition and monetary compensation.
These human rights cases have made contributions to our common law that exceed the justice they have provided to the victims of the respective atrocities that gave rise to them. Human rights litigation has contributed important principles and procedures to other, more mundane, forms of mass commercial and mass tort litigation. The Marcos litigation demonstrated that sampling methodologies could be utilized, in a constitutional manner, to facilitate the adjudication of many mass injury cases. The multiphase class action trial structure that was upheld by the Ninth Circuit in the Marcos case has served as a trial structure model in other class actions. The sampling procedure pioneered in Marcos, from which aggregate damages may be extrapolated, served as a model for sampling successfully utilized, among other contexts, in California employment class actions.
The Holocaust and Nazi-Era suits that were brought against German and Swiss banks, businesses, and governments have demonstrated the dangerous fallacy of granting formal or practical immunity to those in power, whether this power is derived politically or financially. Human rights litigation has spoken truth to power. In so doing, it has armed victims of more routine wrongs-such as exposure to environmental toxics, dangerous drugs, and deceptive financial practices-with the procedural power of an aggregated voice that our courts have now been challenged to acknowledge and deploy.
On July 26, 2000, final approval was granted to a landmark $1.25 billion settlement of the claims of an international class of Holocaust victims against Swiss Banks that engaged in massive looting and misappropriation of assets entrusted to them by hundreds of thousands of Jews and other groups1 imprisoned, murdered, and dislocated by the Nazi regime.2 The Swiss Banks complaints linked the actions of Swiss financial institutions to the Nazi regime and its program of genocide.3
The Swiss Banks litigation was brought and settled under federal class action rules4 in the United States District Court for the Eastern District of New York. The class action was brought on behalf of five plaintiff classes,5 whose members resided in over fifty countries and spoke over thirty languages.6 Most of the court-appointed class counsel either served without fee in the five-year prosecution and settlement of the litigation or donated their court-awarded fees to international human rights endeavors.7
On December 5, 2000, a second court, the United States District Court for the District of New Jersey, approved an international diplomatic/legal agreement creating a foundation titled "Remembrance, Responsibility and the Future," (the "Foundation"), funded with DM $10 Billion (approximately $5 billion U.S.D.). The funding for the Foundation was contributed in equal shares by the German government and German industry, to compensate those who worked as slave or forced laborers for the Nazi regime in German factories, were subjected to medical experimentation, were held in Kinderheims (children's homes)8 or whose property or assets were misappropriated.9 Again, this litigation was brought, and its claims were settled, on behalf of an international class of Holocaust victims, survivors, and their families. …