- Semester: Fall 2017
- Course ID: 397S
- Credit Hours: 3
- Course Type: Seminar
- Grading Method: Pass/Fail Not Allowed
- Upperclass-only elective
|1:15 - 3:05 pm
SMNR: Transnational Class Actions and Smnr: Aggreg Lit Glob Context may not both be counted.
For more than seventy years, the United States has been in the forefront of developing means for resolving injuries to large numbers of people on an aggregate basis. In our modern industrial era, the problem of harm or injury to large numbers of people is not unique to the United States. In addition, civil wars and despotic regimes worldwide have resulted in mass human rights violations and widespread injuries and harms. This course examines the problems related to redress for mass harms in a comparative context. The course begins with an overview of the problem of aggregate harms and approaches to remediating large-scale injuries, including jurisprudential debates centered on litigant claim autonomy. The course then examines American substantive and procedural approaches to resolving mass claims, including critiques of these models. After examining American approaches to mass aggregate claim resolution, the course surveys the similarities and differences between civil law and common law systems, to provide some basis for discussion whether civil law systems are able to support mass resolution of injury claims. The first part of the seminar will examine whether American approaches to large-scale aggregate litigation have migrated to other legal systems, and the embrace of, or resistance to, American style-complex dispute resolution techniques.
Topics explored in the first half of the course include a survey of class action and other aggregate dispute resolution mechanisms that have now been adopted or are being considered in the European Union countries, the U.K., Canada, Australia, Latin America, and Asia. The materials explore whether the United States is gradually moving away from being the center of gravity for class or aggregate litigation. This portion of the course considers problems relating to the enforcement of class action judgments transnationally, as well as problems with the application of res judicata principles. The course also addresses the divergent views of different legal systems regarding so-called “opt-out” and “opt-in” regimes with regard to aggregate resolution of claims.
The course next considers recent developments globally with regard to resolution of transnational securities claims, again discussing the trend in the United States to limit the extraterritorial reach of American courts. We discuss how other countries have become the locus for such litigation by default. Transnational securities litigation provides an archetype for exploring the problems and issues related to the resolution of aggregate claims extending beyond nation-state borders.
The second half of the seminar focuses on the transnational resolution of mass torts and human rights claims affecting large numbers of victims. This portion of the course investigates various international institutions that might provide auspices for aggregate claim resolution, including the United Nations Human Rights Committee, the European Court of Human Rights, and the Inter-American Commission on Human Rights. In addition, the course will examine the American Alien Torts Claim Act, the Torture Victims Protection Act, and the American class action rule, posing the question whether implementation of these statutes in the United States provides a working model for redress of mass injuries. The seminar focuses on a series of case studies to illuminate both the possibilities and limitations of aggregate claim resolution in a global context. These case studies include the Marcos Philippine human rights litigation, the Bosnia-Herzegovina genocide claims, the Austrian ski fire litigation, and the Holocaust victims’ asset litigation. This segment of the course includes examination of the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co., in which the Court substantially limited the extraterritorial scope of the American Alien Tort Statute.
The seminar ends with a discussion of the recent development in the European Union in its 2012 Resolution, “Towards a Coherent Approach to Collective Redress.” An examination of the EU Resolution raises the question whether the EU has formulated a type of regulatory litigation that provides an interesting analogue to the American class action procedure. In contrast to the EU recommendations, these materials consider the argument that the EU ought to have adopted an opt-out (rather than an opt-in) approach to aggregate litigation.
This is a writing seminar. Each student in the seminar will be required to complete four short papers of approximately five pages, singled-spaced text during the course of the semester. Students will choose the weeks in which they wish to submit papers. Each paper will analytically present and discuss issues or debates relating to the weekly reading assignments. Each student, at the beginning of the semester, chooses the paper topics and timing of the papers.
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