Justice for the Collective: The Limits of the Human Rights Class Action

Abstract

The class action lawsuit is our grand procedural experiment in collective justice. As against the U.S. legal system's strong orientation toward individual rights rather than group rights, the class action is a countercurrent. Through Rule 23 of the Federal Rules of Civil Procedure, large numbers of previously unaffiliated individuals can proceed in federal court as a group, litigating through representatives. A recent form of this litigation, the human rights class action, takes this experiment to its far reaches. In the human rights class action, the tension between individual claimants and the group as a whole can be heightened. The class representatives and other forces behind the litigation mediate this tension. The representatives constitute the public face of the victim in suits that are about extreme victimization. They can focus on the horrifying stories of individual victims, or they can emphasize the systemic nature of the wrongs. In terms of potential remedies, strategic choices made by the representatives and their lawyers invite the court and the wider world either to see the case from the perspective of individual suffering or from the wider perspective of a shattered People. This tension between justice for individual victims and justice for the collective runs through Imperfect Justice by Stuart Eizenstat and Holocaust Justice by Michael Bazyler, two recent and extensive accounts of the Holocaust restitution cases, a set of related mega-class action suits brought in the late 1990s. Both authors chronicle the efforts of elderly Holocaust victims and their supporters to obtain a remedy for wrongs suffered during the Nazi era and afterwards. For these victims, the litigation weapon of choice was the class action lawsuit. With the aid of Rule 23 of the Federal Rules of Civil Procedure, Holocaust-era claims went forward as a collective effort.

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