It has been said that Filártiga v. Pena-Irala is the Brown v. Board of Education of human rights litigation. Like Brown, Filártiga presents one of those rare breakthrough moments in law. In Filártiga, the Second Circuit confirmed that victims of human rights abuses abroad could seek legal redress in United States courts under the then-obscure Alien Tort Statute (ATS). Filártiga thus inaugurated a steady line of cases in U.S. courts invoking the ATS and related statutes to adjudicate international human rights claims. For a variety of reasons, including the very existence of these statutes, civil litigation has emerged as a prominent means for the promotion of international human rights norms in the United States.
Beyond the shared status of the two cases as legal watersheds, the analogy between these cases merits greater scrutiny. Accordingly, this essay meditates on the way in which Filártiga and its progeny simultaneously fit within, and diverge from, the model of public impact litigation inaugurated - or at least exemplified - by Brown. A brief summary of these cases reveals that in some respects, ATCA-style litigation is a more modest enterprise, akin to personal injury or mass tort suits involving individual victims seeking redress for violations of international norms. That said, human rights advocates share the ambitions of practitioners of public impact litigation in using judicial processes to transcend the dispute between individual litigants, advance a particular political cause or agenda, and produce lasting and systemic changes in countries where human rights violations occur. At the same time, these cases are no longer exclusively a tactic of human rights lawyers. Members of the plaintiffs' bar, who are perhaps motivated more by the potential high stakes promised by these cases than by ideological or reform goals, are increasingly initiating such suits. Thus the diversification of human rights litigation in terms of actors, desired outcomes, and motivations resists classification as any one litigation model.
This Essay then discusses the various impacts ATS-style litigation in United States can have on plaintiffs, their communities, defendants, potential defendants, the human rights movement, and other processes of social change in target countries. A necessarily impressionistic survey of the results of ATS-style cases filed to date reveals that these impacts are most salient with respect to the parties involved and their immediate communities. The broader impact of human rights litigation is more speculative, as it remains difficult to measure to what degree ATS-style litigation has contributed to the deterrence of perpetrators and ultimately the reform of states' treatment of their citizens and others within their jurisdiction and control.
This Article argues that because confirmed first order effects remain worthy of praise and replication, this lack of empirical proof of broader second order effects does not undermine this effort. Indeed, practitioners of ATS-style litigation should be wary of espousing an overabundance of objectives for this litigation, because doing so may undermine or overshadow what these cases do accomplish for individual victims of human rights abuses. Likewise, it is argued that human rights advocates should not pin their hopes on achieving these broader impacts at the expense of their clients and their clients' experience with the litigation process.
In any case, notwithstanding the first and second order effects that have been achieved, this Essay cautions that such litigation should not replace other forms of human rights advocacy. An over-reliance on adversarial litigation, as opposed to other processes of social change, raises some of the same concerns that surface in the civil rights context about the efficacy of resorting to law and the judicial process to promote durable social change and the ability of the judicial process to address major social and economic problems.
57 Vand. L. Rev. 2305