Human rights violations as mass torts: Compensation as a proxy for justice in the United States civil litigation system

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.