“Justice Across Borders: The Struggle for Human Rights in U.S. Courts” is a thought-provoking and groundbreaking book by Jeffrey Davis, a respected jurist and expert in international human rights law.
The book discusses the challenges and triumphs of bringing human rights cases before the US courts. Through insightful analysis and real-world examples, Davis examines the evolving role of the US courts in addressing human rights violations and explores the impact of these cases on both domestic and global legal frameworks.
Davis emphasized the significance of recognizing human rights as a universal concern.
This book studies the struggle to enforce international human rights law in federal courts. In 1980, a federal appeals court ruled that a Paraguayan family could sue a Paraguayan official under the Alien Tort Statute—a dormant provision of the Judiciary Act of 1789—for torture committed in Paraguay. Since then, courts have wrestled with this move toward a universal approach to human rights law. Davis examines the efforts of human rights groups to use the law to enforce human rights norms. He explains the separation of powers when victims sue the United States or when the United States intervenes to dismiss a claim and analyzes controversies arising from efforts to hold foreign nations, foreign officials, and corporations accountable under international human rights law. Although his analysis is driven by social science methodology, its basis is the dramatic human story from which these events emerge.
Davis discusses several litigation characteristics that affected plaintiffs’ prevailing prospects. Chapter 3 of this book examines the significant role played by human rights NGOs in creating and shaping this area of law over the past thirty years. Through interviews with lawyers, Davis demonstrates efforts to assemble and press a case.
He also draws on the political science literature on the role of interest groups in litigation to explain why NGO-represented plaintiffs are more likely to prevail than privately represented plaintiffs. Factors include resources to develop a case, expertise and selectivity in bringing cases to trial.
Also beyond the traditional limits of territorial jurisdiction, defendants may argue that a federal district court is not the appropriate forum to decide the case, or that the plaintiff has not exhausted their remedies in their home country. Individual defendants may also claim governmental immunity or claim that the alleged crimes were committed as an act of the state. Corporations are also subject to prosecution under the ATS; In chapter 6 considers the challenges plaintiffs face in bringing these claims. With few exceptions, NGOs have failed to sue corporations for aiding oppressive regimes and as well as to expand human rights claims to include environmental destruction or economic coercion.
Similar to his 2006 journal article, in Chapter 7, Davis reports an empirical examination of the factors identified in the previous four chapters. In the US district court trials, the plaintiff’s probability of victory is statistically reduced when either the US government is the defendant or when the administration makes a statement of interest.
Meanwhile, an NGO’s representation and claim of violation of international law increases the plaintiffs’ chances of prevailing at both the trial and appellate levels. Plaintiffs have less success on appeal when the defendant is either a corporation or invokes the political question doctrine. Surprisingly, judge ideology, a variable that dominates the political science literature on judicial outcomes, is irrelevant. Interviews with human rights attorneys suggest that Republican-appointed judges bring a conservative approach to international law and that adherence to the rule of law prevails. However, another factor suggested by Davis is forum shopping, where attorneys file cases with lawyers in jurisdiction’s, hoping they will be settled more favorably. This unresolved conundrum is significant. Denial of ideological issues counters the scholarship of judicial decision-making, while forum shopping is a predictable adaptation to ideological differences. One interpretation affirms the universal force of human rights, while the other suggests the importance of careful strategy.
In the final chapter, Davis claims, “My findings show that federal courts are gradually eroding the traditional norms of sovereignty, territorial jurisdiction, and judicial restraint on international issues. In limited cases, some federal judges seem to embrace emerging doctrines of universalism and internationalism” (p. 264 ). An obvious consequence is the possibility of holding accountable human rights perpetrators. But even unsuccessful cases can be important to individual plaintiffs who are given a voice. Additionally, because these are civil cases, lawyers have discovery powers. Being able to obtain documents and corporate officers can produce evidence that a criminal case could never reveal. The historical record of atrocities denies perpetrators the ability to “move on” without notice.
Should the Court defer to the executive branch, which is primarily charged with conducting foreign policy, or should the executive be held accountable for the Court’s decisions? Could lawsuits against US corporations lead to a deterioration in standards, as they withdraw from some areas for fear of lawsuits, only to be replaced by tougher foreign corporations?
The first three chapters of this book present an accurate historical and legal analysis of the development of legal accountability in human rights cases, including an internal perspective of human rights NGOs. The rest of the book considers more analytically the factors that affect plaintiffs’ chances of success. Students of human rights may profitably read the entire book. Analytical presentation of factors affecting the likelihood of prevailing in litigation makes the book unique.
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Tarin Alam Sorna
Intern, Content writing department
YSSE