With All Deliberate Speed: Civil Human Rights Litigation as a Tool for Social Change

It has been said that Fildrtiga v. Peha-Irala is the Brown v. Board of Education of human rights litigation. Like Brown, Fildrtiga presents one of those rare "breakthrough moments" in law. In Fildrtiga, 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 Claims Act (ATCA). Fildrtiga thus inaugurated a steady line of cases in U.S. courts invoking the ATCA 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-and indeed the premise of this Symposium Panel-merits greater scrutiny. Accordingly, this essay meditates on the way in which Fildrtiga 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 ...