Human Rights Class Actions

The literature on U.S. class actions is so vast that any attempt at sketching even a basic bibliography is bound to fail. In spite of that, it seems useful to mention that at present the judgments on the effectiveness of class actions and their future developments are mixed and debatable: for two radically different approaches, see, for instance, Marcus (2016) and Fitzpatrick (2015). In any event, nowadays as in the past the approach to class actions does not seem to contemplate half measures: either you love them or you hate them. As one author has written, the literature on class actions has always relied on competing, often ‘romantic’ narratives, so that ‘the debate over class action litigation reform often is reduced to hyperbolic, rhetorical posturing’: Mullenix (2014/2015, 447). As far as the European trends in the field of group actions are concerned, see the essays collected in Harsági and Van Rhee (eds) (2014).

The definition is attributed to Judge Henry Friendly: Lewis Humphrey (1980/1981, 327–354).

According to scholarly opinions as well as courts, the two statutes are strictly connected—the TVPA being almost a sort of modern development of the ATCA—even though they provide for distinct and separate causes of actions: see extensively Apostolova (2010, 643–652).

The TVPA adopts a very broad notion of ‘torture’. The relevant rule provides as follows: ‘Section 3. DEFINITIONS. (b) TORTURE—For the purposes of this Act—(1) the term “torture” means any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and—(2) mental pain or suffering refers to prolonged mental harm caused by or resulting from—(A) the intentional infliction or threatened infliction of severe physical pain or suffering;—(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;—(C) the threat of imminent death; or—(D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.’

If my oversimplification here of the American concept of jurisdiction raises eyebrows, this author assures the kind reader that I chose this avenue only because of the constraints of limited space, within which it would not be practicable to elucidate the complexities of a subject matter that is among the most problematic ones concerning the way U.S. courts, both federal and state, can assert their power on the parties to a dispute. For a concise but clear commentary on the main principles governing the jurisdiction of U.S. courts, see Kane (2013, 7–27, 41–71).

630 F.2d 876 (2d Cir. 1980).

630 F.2d at 884.

The complete text of the opinion can be found at http://​hrp.​law.​harvard.​edu/​wp-content/​uploads/​2011/​04/​filartiga-v-pena-irala.​pdf. Accessed 7 June 2018.

For this classification, see Van Schaack (2003, 282, 283).

Out of an extensive bibliography, see, e.g., Collingsworth (2006, 115–132), with reference to many other cases similar to Doe v. Unocal; Rosencranz and Louk (2005, 130–147); Kielsgard (2005, 185–215).

Kiobel v. Royal Dutch Petroleum Co. (decided 17 April 2013). https://​www.​law.​cornell.​edu/​supct/​pdf/​10-1491.​pdf. Accessed 7 June 2018.

Ibid., 12.

Ibid., 13.

Ibid.

Two readings are a must on this subject (at least in this author’s opinion): Chayes (1976), 1281–1316 and Kagan (2003).

International Law Association, London Conference (2000), Committee On International Human Rights Law And Practice, Final report on the exercise of universal jurisdiction in respect of gross human rights offences. https://​www.​scribd.​com/​document/​131960356/​ILA-Report-on-Universal-jurisdiction-2000, p. 3. Accessed 7 June 2018.

International Law Association, London Conference (2000), n. 17 above, at p. 20.