With All Deliberate Speed: Civil Human Rights Litigation as a Tool for Social Change
Van Schaack, Beth, Vanderbilt Law Review
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. …