Justice for the collective: the limits of the human rights class action.

• Author: Dubinsky, Paul R.

HOLOCAUST JUSTICE: THE BATTLE FOR RESTITUTION IN AMERICA'S COURTS. By Michael J. Bazyler. New York: New York University Press. 2003. Pp. xix, 411. Cloth, $34.95.

IMPERFECT JUSTICE: LOOTED ASSETS, SLAVE LABOR, AND THE UNFINISHED BUSINESS OF WORLD WAR II. By Stuart E. Eizenstat. New York: Public Affairs. 2003. Pp. xi, 401. Cloth, $30.

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.

Both authors analyze the Holocaust suits and settlement negotiations thoughtfully and in great detail. Both acknowledge that the class action device contributed much to the overall financial success of the Holocaust restitution movement. (1) Both are quick to acknowledge, however, that class action litigation likely would not have produced results for Holocaust survivors absent other advocacy efforts: efforts in Congress, in state legislatures, in state regulatory bodies, at the highest levels of the Clinton administration, and in the court of public opinion. (2) Simultaneous effort on all fronts enabled Holocaust survivors, after fifty years of being rebuffed in Europe, finally to sit across the settlement table from European governments and the world's leading corporations.

The success of this endeavor was so impressive (or at least perceived that way) that it has drawn much attention from other victim reparations movements. African Americans are encouraged by the Holocaust slave labor settlement. (3) Armenians take heart from the Holocaust insurance and banking litigation. (4) South African victims of Apartheid rely upon these cases as a bellwether, an indication that there is momentum in favor of holding corporations accountable for human rights violations. (5) All view the result in the Holocaust cases as a broad collective victory: cases litigated on a class basis, settled with few class members opting out, (6) propelled forward by the efforts of the collective's main advocacy organizations and supplemented by broad support among the Jewish collective at large. (7) All of which leads Bazyler and Eizenstat to speculate that there may be a "Holocaust restitution model" for other victims of past injustice. (8)

Notwithstanding the authors' optimism and the number of new human rights class actions that have been filed in the past few years, other groups should proceed with caution. Before any "model" is identified and followed, the limitations of the Holocaust restitution cases need to be acknowledged. Chief among these limitations is that those cases were more about individual justice than collective justice. Little was awarded in the way of remedies to address injuries suffered by the collective. Nearly all the money generated by the settlements was paid out in the form of individual cash awards. Proposals for group-oriented remedies were rejected. Other victim groups should take note. Seeking collective remedies through the Holocaust model is risky business.

1. DIFFERENT PERSPECTIVES: THE HUMAN RIGHTS SCHOLAR AND THE WASHINGTON INSIDER

   Disputes arising from the Holocaust have been in courts (here and elsewhere) for sixty years. Nearly all of these proceedings have focused on individual perpetrators and how they acted at a time when they possessed extraordinary power over others and where the "others" were people that statutes, decrees, or judicial practice had put outside the law's protection. (9) From the trials at Nuremberg in the 1940s to those in national courts in later decades, Holocaust cases had familial themes: good and evil, obeying orders, personal ambition, and the bureaucratic mindset.

   The class action suits filed in the Eastern District of New York, beginning with the Swiss banks case in 1996, were different. The defendants were corporate entities, not individuals. The complaints were more about profit than malice. The causes of action arose not merely from events during the War, but also after it. The defendants were not those who had conceived of and carried out genocide. Daimler Benz had not devised the Final Solution, but it had worked with the Nazi regime to keep its assembly lines filled with slave laborers. Swiss Bank Corporation (SBC) had not liquidated the Lodz Ghetto, but it had looted the assets of its Jewish depositors trapped there and in other ghettos across Poland. After the War, SBC had worked in coordination with other Swiss banks to prevent heirs from claiming the assets of family members who had perished. In other words, the Holocaust restitution cases of the 1990s opened the door to ever wider circles of complicity. Had the Swiss banks acted with the support of the Swiss Government and the larger Swiss business community? Did wrongdoing occur on the other side of the Atlantic among America's blue-chip corporations, some of whom had close ties to Nazi Germany? The cases raised expectations of collective relief--remedies not only for individual victims but for the collectives of which they are a part. If the defendants had acted collectively, had not the victims suffered collectively?

   Both Eizenstat and Bazyler lead us to consider these questions, but they lead us along two different paths. Imperfect Justice is partly a memoir and partly a diplomatic primer from a longtime Washington insider who became U.S. Ambassador to the European Union in 1993. As the Clinton administration came into office, Eizenstat (prompted by Richard Holbrooke) (10) seized upon a window of opportunity for nudging the new governments of Eastern Europe to deal with their wartime past and the many properties that had been confiscated from religious orders, private associations, and other components of civil society. In the case of churches, the culprits were the post-War Communist governments. In the case of Jewish properties, there were two culprits. Synagogues and cemeteries had been seized and destroyed during the Nazi period. After the War, these properties were then expropriated by Communist governments.

   When Eizenstat begins discussions with the post-Communist governments, knotty issues quickly surface: Who now held these properties? To whom should they be returned? Did a tiny community of elderly Holocaust survivors have the resources to restore and maintain these properties? Should the properties instead be transferred to international Jewish organizations functioning in essence as trustees? Could these latter organizations, many based in New York or Jerusalem, see eye-to-eye with local Jewish communities?

   Over the course of six years, Eizenstat is drawn steadily deeper into these and other questions of Holocaust restitution. Like a freelance photographer, he carries his Holocaust portfolio with him from post to post, from the U.S. Embassy in Brussels to the Commerce Department to the State Department and finally to the number two spot at Treasury. It is difficult to think of another executive branch official in recent memory who invested so much effort and so much of his reputation in trying to resolve claims among private parties, most of whom were not even U.S. citizens. (11)

   Holocaust Justice, on the other hand, is the work of a human rights lawyer and scholar. Bazyler's narrative is grounded in the cases themselves--their theories of liability and their implications for the larger field of international human rights. In this, his basic perspective and Eizenstat's are quite different. Eizenstat repeatedly lets us know that he has little patience for class action litigation in general and plaintiff-side class action lawyers in particular. (12) Bazyler, on the other hand, is a sympathetic observer and perhaps even a fellow traveler. (13) When he takes someone to task, it is the defendants and their counsel, especially over delay and deceit. (14) Bazyler also puts some distance between himself and the views of prominent Jewish intellectuals reluctant to be engaged in monetizing the Holocaust. (15) That, in his view, is not the chief danger. Rather it is in acquiescing to a human rights regime that lacks real remedies. For him, the hero of the drama is the American judicial system. Unlike tribunals elsewhere, U.S. courts stood ready to do justice for vast numbers of victims, even those who were not...