Transcript Class Actions and Mass Tort Litigation in a Global Context

Class Actions and Mass Tort
Litigation in a Global Context
Professor Linda S. Mullenix
Human Rights Class Actions
Human Rights Class Actions
 Questions:
 Are human rights violations a type of
claim suitable for collective resolution?
Why?
 What makes human rights violations
different than other types of harms?
Different than tort injury? Purely economic
injury?
 What are the problems involved with
prosecuting human rights violations?
Human Rights Class Actions
 Questions:
 Who, or what institutions should address
human rights violations?
 Are international organizations or
commissions the appropriate venues for
resolving human rights claims?
 Can human rights claims be resolved by
individual nation-state judicial authorities?
 Can United States courts adjudicate
human rights claims?
Human Rights Class Actions
 Questions:
 What are the authorities or sources
of law for adjudicating human rights
violations?
 What types of remedies are
appropriate for human rights
violations?
 Is the American class action rule a
good procedural means for resolving
human rights violations?
Human Rights Class Actions
 Prof. William J. Aceves, Actio Popularis? The Class Action
in International Law, U. Chi. Legal Forum (2003):
 Theses:
 Class action designation in human rights cases
provides plaintiffs with several advantages
 International law and international tribunals have
rejected the concept of actio popularis for resolving
group harms
 The possibility of group litigation in international
institutions is very limited
 Class action litigation faces significant hurdles before
international institutions
 The American class action rule provides the best
possibility for resolving human rights litigation
Human Rights Class Actions
 Prof. William J. Aceves, Actio Popularis?
The Class Action in International Law, U.
Chi. Legal Forum (2003):
 Theses:
 “This article posits that international law
should expand locus standi requirements to
allow class action designation for individuals
in international institutions.”
Human Rights Class Actions
 Prof. William J. Aceves, Actio Popularis?
The Class Action in International Law, U.
Chi. Legal Forum (2003):
 Theses:
 “By applying the criteria of Federal Rule of
Civil Procedure 23 to group litigation,
international institutions can take advantage
of the rigors and efficiencies of class action
litigation without resorting to the liberal locus
standi of an actio popularis.”
Human Rights Class Actions
 Prof. William J. Aceves, Actio Popularis? The
Class Action in International Law, U. Chi. Legal
Forum (2003):
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Class action designation in human rights cases
provides plaintiffs with several advantages:
Individuals unlikely to bring own claims
Atrocities committed against hundreds or
thousands of victims
Victims impoverished and isolated
Class designation permits single proceeding,
reduces transaction costs, promotes efficiency
May be only realistic option for redress
Provides degree of anonymity to victims
Human Rights Class Actions
 Prof. William J. Aceves, Actio Popularis? The
Class Action in International Law, U. Chi. Legal
Forum (2003):
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International law and tribunals have rejected the
concept of actio popularis for resolving group
harms
From Roman law: actio popularis action brought
by individual on behalf of public interest
International tribunals reject actio popularis
actions: individual applicant must be direct victim
of purported violation
Efforts by applicants to represent interests of
broader group or class unsuccessful
Human Rights Class Actions
 Prof. William J. Aceves, Actio Popularis?
The Class Action in International Law, U.
Chi. Legal Forum (2003):
 International Court of Justice opinions:
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Actio popularis alien to international law
Court unable to regard it as imported by
the “general principles of law” in Article 38
Court refused to accept the right in any
member of a community to take legal
action in vindication of a public interest
Human Rights Class Actions
 Prof. William J. Aceves, Actio Popularis? The Class Action
in International Law, U. Chi. Legal Forum (2003):
 International Court of Justice opinions:
 However, International Court recognizes obligations
erga omnes: international obligations that concern all
states
 Erga omnes include rules involving basic rights of the
human person:
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Prohibition against genocide
Prohibition against slavery
Prohibition against racial discrimination
But erga omnes not applied to individuals: no expansion
of locus standi for individuals in international
institutions
Human Rights Class Actions
 Prof. William J. Aceves, Actio Popularis? The Class Action
in International Law, U. Chi. Legal Forum (2003):
 Possibility of group action in international institutions:
 United Nations Human Rights Committee
 European Court of Human Rights
 Inter-American Commission on Human Rights
 These three institutions:
 Established to protect human rights
 Individuals may directly bring claims
 Have authority to review state compliance with treaty
obligations
 Forms of relief: declaratory, compensatory, remedial
Human Rights Class Actions
 Questions:
 How effective are these three institutions
in permitting group actions to vindicate
human rights violations?
 What problems or hurdles do applicants
have in attempting to vindicate group
rights in these three institutions?
Human Rights Class Actions
 Prof. William J. Aceves, Actio Popularis? The
Class Action in International Law, U. Chi. Legal
Forum (2003):
 Thesis:
 “Preliminary observations reveal that class action
litigation faces significant hurdles before these
(and other) international institutions. Such claims
are often dismissed at the admissibility stage. .
.Efforts by individual applicants seeking to
represent the interests of broader a broader
group or class generally have proven
unsuccessful. . .”
United Nations Human Rights
Committee
Human Rights Class Actions
 United Nations Human Rights Committee
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Authority: International Covenant on Civil and Political
Rights (in force 1976)(“ICCPR”)
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Recognizes civil and political rights that derive from the
inherent dignity of the human person
Bodily integrity; torture; cruel, inhuman, degrading
punishment, freedom of religion, expression, fair trial
Constituted 18 experts, 4 year terms
May consider state communications raising violations of
ICCPR
May consider individual communications raising
violations of ICCPR
Views have no binding force; member states not legally
obligated to comply
Human Rights Class Actions
 Optional Protocol of Human Rights Committee (1976) --
Individual communications subject to admissibility
requirements:
 Must be submitted by individual (no NGOs,
corporations, political parties)
 Anonymous communications not recognized
 Joinder is possible; each individual communication
must meet admissibility requirements
 Petitioner must claim to be victim of ICCPR violation
(direct and immediate injury)
 Must make a prima facie showing of injury
 No individual by actio popularis challenge a law or
practice contrary to the Covenant
 Cannot be under examination by other institution
 Individual must have exhausted all domestic remedies;
no frivolous or vexatious claims
Human Rights Class Actions
 United Nations Human Rights Committee:
 104 countries accepted Protocol
 Since 1976, approximately 1,123 individual
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communications
Opinions in 435 cases
Right to file class action complaint not formally
recognized in ICCPR or Committee rules and
procedures
Few decisions reflect consideration of group
litigation (examples in article)
Problem: individual applicants not direct victims
of ICCPR violation and cannot pursue relief on
behalf of group
European Court of Human Rights
Human Rights Class Actions
 European Court of Human Rights:
 Authority: European Convention for the
Protection of Human Rights and Fundamental
Freedoms (“European Convention”)
 Adopted by Council of Europe (1950); in force
1953
 Recognizes array of civil and political rights
 Revision 1998: Protocol Number 11:
consolidates functions in European Court of
Human Rights
Human Rights Class Actions
 European Court of Human Rights:
 Complaint submitted to Judge Rapporteur;
findings to 3 judge committee; considers
admissibility of complaint
 Requires unanimous vote of committee
 Further proceedings in non-unanimous
decisions
 Decisions of Court binding
Human Rights Class Actions
 European Court of Human Rights:
 Right of individual application (Article 34 of European
Convention):
 Persons, NGOs, groups of individuals; corporate
bodies, political parties, trade unions
 Claim parties to Convention violated Convention rights
 No prior consent required; automatic jurisdiction
 May order joinder of two or more applications
 Permits third-party intervention (limited)
 Applicant must be a victim of the violation
 May raise claims of potential or threatened harm
 May not be before another court or institution
 Must have exhausted all domestic remedies
 May not be ill-founded or abuse of right of petition
Human Rights Class Actions
 European Court of Human Rights:
 Number of filings:
Between 1955-1999: over 63,000 individual applications
 2000: 10,486 (17% of total)
Relatively few cases involving elements of class action
litigation (examples in article)
Distaste for actio popularis form of group litigation
Most such applications found lacking in admissibility
requirements: European Convention does not provide
individuals with right of actio popularis, to the extent that
applicants claimed to act on behalf of other individuals
Convention does not give a victim the power to delegate
standing to anyone else
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Inter-American Commission on Human
Rights
Human Rights Class Actions
 Inter-American Commission on Human Rights
(1960):
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Authority: American Declaration on the Rights and
Duties of Man (“American Declaration”)(1948)
Individuals may present petitions
 American Convention on Human Rights (1969);
established Inter-American Court of Human
Rights:
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Authorized to accept petitions alleging violations
of the American Convention
No individual petitions
Only petitions by member states
Jurisdiction only over states accepting jurisdiction
Human Rights Class Actions
 Right of Individual Petition (Inter-American
Commission):
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No prior consent by state party required
Executive Secretariat initial processing
Petitions by persons, groups, NGOs legally recognized
in OAS
Recognizes permissibility of joinder
Must allege violation of American Convention; must
allege violation of a human right
Subject matter cannot be pending in other institutional
body
Applicant must have exhausted all domestic remedies
Petition must not be groundless, etc.
Human Rights Class Actions
 Right of Individual Petition (Inter-American
Commission):
 Victim requirement:
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Human person suffers injury in fact to protected
right;
Injury proximately caused by illegal act;
Act is imputable to state
Act breaches international obligation
 Violation need not have occurred in Inter-
American system
 Individuals cannot instigate an actio popularis
and present a complaint against a law in
abstracto
Human Rights Class Actions
 Inter-American Commission:
 Caseload:
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Increasing caseload since creation
1997: 458 petitions
2001: 718 petitions
Between 1997-2001: 3,045 petitions
Human Rights Class Actions
 Inter-American Commission:
 Some commentators argue provisions of
American Convention contemplate class
action or actio popularis litigation
 Provides more liberal standing than U.N.
Human Rights Committee or European Court:
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Any persons, group of persons, or NGO may
file petition
Case law recognizes several forms of group
litigation (examples in article)
Summary of Problems with Existing
International Human Rights Institutions
on Behalf of Group Litigation
Human Rights Class Actions
 Challenges to Class Litigation in International
Arena:
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Class action not recognized as a procedural
mechanism in international law
Individual applicant cannot file complaint on behalf
of other victims (absent specific authorization from
each victim)
U.N. Human Rights Committee and European Court
make it difficult to pursue group litigation
Establish strict standing requirements ensuring
only individual victims can bring claims
However, cases involving rights of indigenous
groups provide some analogies to group litigation
Human Rights Class Actions
 Explanations for Absence of Class Action in
International Law:
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Traditional focus on rights and obligations of
states
State-centric paradigm
Need for class litigation minimized because states
can bring actions to remedy violations of
international law (state communications)
Other institutions also hear state claims (e.g.,
International Criminal Tribunal)
Nonstate actors (e.g., NGOs) have ability to bring
claims for serious violations in variety of forums
Class Actions in International Law for
Human Rights Violations?
Human Rights Class Actions
 Potential Problems of Class Actions in
International Law:
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How to define class?
Opt-out rights?
How to select class representatives?
Incentives to guide settlement process?
Distribution of damage awards?
Differences in religion, culture, and nationality
Human Rights Class Actions
Prof. Aceves:
“Through the development of a rigorous
set of procedural mechanisms, a class
action regime could be developed that is
both fair and efficient.”
Human Rights Class Actions
Prof. Aceves:
“The Rule 23 requirements seek to ensure
that locus standi – the right (and ability)
to protect legal interests – exist in
principle and practice.”
Human Rights Class Actions
Prof. Aceves:
“Rule 23 would preclude an actio
popularis; yet, it would allow other forms
of group litigation to proceed.”
Human Rights Class Actions
 Question:
 Why does Prof. Aceves believe that an
American-style class action rule would
satisfy locus standi principles, while not
violating the prohibition against an actio
popularis?
Human Rights Class Actions
 Why Rule 23 would alleviate concerns about group practice
in international law:
 Would preclude actio popularis
 Commonality requirement would permit only claims that
sher common facts or law
 Typicality would ensure class reps. Have sufficeint
interest to represent others
 Adequacy requirement would further enhance
protections
 Would reduce caseloads by bringing multiple claimants
together, promote efficiency, reduce delay
 More effective than individual claims in highlighting
abuses (group complaint shows pattern)
Human Rights Class Actions
 Aceves conclusion:
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“By applying the Rule 23 criteria to group
litigation, international institutions can take
advantage of the rigors and efficiencies of class
litigation without resorting to the liberal locus
standi of an actio popularis.”
Fine