Thursday, December 17, 2015
Courtelyou C. Kenney, who recently completed a fellowship at Stanford Law School, has published a fascinating article, Measuring Transnational Human Rights, in the December 2015 issue of the Fordham Law Review. Using quantitative methods, she evaluates broad claims regarding the successes or failures of transnational human rights claims in U.S. courts and finds that the reality lies somewhere in between. The abstract is below.
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.