Measuring Transnational Human Rights

December 1, 2015

Over the past three and a half decades, hundreds of transnational human rights civil suits—i.e., suits seeking monetary compensation for atrocities committed abroad ranging from torture and extrajudicial killing to forced labor and human trafficking—have been filed in the United States. Exhaustive qualitative research chronicles plaintiff “successes” and “failures” as defined by how frequently plaintiffs win, the magnitude of judgments and settlements they obtain, and the extent to which judgments and settlements are enforced. The prevailing wisdom is that while some cases have proven runaway successes along these axes, in general, transnational human rights suits constitute “a modest enterprise akin to personal injury or mass tort suits.” Certain commentators argue that hostility stemming from “foreignness” and reliance on international law is responsible for this underwhelming performance and, in particular, the low win rate in transnational suits. Commentators point to “avoidance doctrines”—such as personal jurisdiction, forum non conveniens, abstention comity, and the presumption against extraterritoriality— perceived as the most common means of shunting transnational cases as evidence of courts’ “isolationism.” Other thinkers take the argument a step further, claiming hostility toward international law portends the demise of human rights in federal courts following the U.S. Supreme Court’s 2013 decision Kiobel v. Royal Dutch Petroleum Co. (Kiobel II) that fundamentally changed the landscape against which these suits are litigated. But no scholar to date has undertaken a systematic, quantitative examination of such conclusions to determine whether the numbers actually bear them out.

This Article fills that gap. It collects a new dataset of all cases and opinions filed from 1980 to the present under the two predominant human rights civil statutes to scrutinize these claims and lay the groundwork for future quantitative analysis. The data support three findings. First, the transnational human rights enterprise is modest both in terms of how frequently plaintiffs prevail and how much money they are entitled to and actually do obtain, but not as modest as believed. Second, any modesty is not evidence of courts’ isolationism. The real doctrines most commonly employed to end civil suits prior to Kiobel II suggest that courts do not use domestic law avoidance mechanisms designed to prevent consideration of, and de facto shun, the application of international law. Rather, courts apply international law, including human rights law, but are conservative in their interpretation of it—protecting only certain types of harms committed by certain types of actors. Third, a core group of claims has weathered significant doctrinal shifts over time. Plaintiffs bringing these claims are poised to circumvent Kiobel II and are on track to be as “successful” or “unsuccessful” as ever.

*The dataset associated with this Article—which is current through November 12, 2015, the date this Article was sent to press—is publically available on SSRN and the Fordham Law Review website by clicking here.

December 2015

No. 3