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

• Published in: Michigan Law Review Vol. 102; no. 6; pp. 1152 - 1190
• Main Author: Dubinsky, Paul R.
• Format: Book Review Journal Article
• Language: English
• Published: Ann Arbor The Michigan Law Review Association 01-05-2004; Michigan Law Review Association
• Subjects: Civil procedure; Class action lawsuits; Class actions (Civil procedure); Diplomatic & consular services; Federal Rules of Civil Procedure; Holocaust; Holocaust survivors; Human rights; Justice; Law and legislation; Laws, regulations and rules; Looting; Nazi era; Restitution; Settlements & damages; Social aspects; Swiss banks; U.S. states; War; World War (1939-1945); World War II; UNITED STATES; United States > US
• ISSN: 0026-2234; 1939-8557
• DOI: 10.2307/4141941

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.
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