Exporting Environmental Justice by Importing Claimants: The Suitability and Feasibility of the Globalization of Mass Tort Class Actions

I. INTRODUCTION

On March 21 2005 a major earthquake stoneed the small Southeast Asian land of Burma. However, unlike the horrific tremors that be shakened the region in December 20041 this earthquake was not measured upon any Richter scale. Instead, its issues were felt in small villages quite through Burma's Tenasserim region and its aftershocks will undoubtedly shake corporate boardrooms completely through the United States. It was upon this date that Unocal made the groundbreaking decision to be the first U multinational corporation to seat a suit brought by a assemblage of exclusively foreign plaintiffs in answer to the corporation's foreign conduct2

The genesis for filing this pioneering suit was a law learner paper written almost a decade ago.3 Despite the skepticism of her professor, Katie Bedford advocated that U multinational corporations responsible for supporting human rights abuses of the like kind as rape, torture, forced labor, and assassination in Burma could be held responsible beneath U.S. law for their actions.4 Now, almost a decade later, this note explores the possibility of expanding on the success of using U class action law in addressing human rights abuses to encompass claims relating to U multinational corporate international environmental administration

U.S. corporations have increasingly been revolutionized by dint of the drive toward globalization. Corporations, one time wholly located within the borders of the United States, have become with truth multinational corporations (MNCs) leveraging advances in communications technologies to take replete advantage of less stringent environmental and labor laws overseas.5 Corporate operations have been blamed for ecological destruction resulting in expansive human tragedy in countries over the lesser-developed world; still, to date there has been little academic attention paid to the feasibility or suitability of affected populations making use of U courts for the drift of rectifying their environmental harms.

This note will explore the history, suitability, and feasibility of alien plaintiffs' use of the United States' unique class action device to counteractive the ills caused by U MNC Part I will explore the merits of alien use of the U class action device. It will explore the advantages of class certification by means of groups of alien plaintiffs, while acknowledging and addressing the likely opposing viewpoints to of the like kind usage. Part II will discuss the primary mechanism for foreign plaintiffs to obtain make submissive matter jurisdiction within U.S. courts: the Alien Torts Claim Act (ATCA). It will additionally address the Act's history and previous usage along with the various procedural and judicial barriers that potential alien classes will face in bringing suit below the Act for environmental harms. Finally, Part III will examine the unique issues facing certification of a class consisting of alien plaintiffs bringing suit against U MNC relating to environmental harms. Although the class action device may not be a panacea for alien plaintiffs to look after redress for their environmental harms, the note terminates that within the proper factual connected thought [i]or[/i] thoughts the use of the U class action within U courts may nonetheless provide a vehicle for otherwise voiceless plaintiffs to resist exploitation at the hands of U.S.-based MNC

II. THE MERITS OF GLOBALIZING THE U CLASS ACTION TO ADDRESS ENVIRONMENTAL HARMS

There are numerous aspects of the U judicial a whole that are particularly appealing to foreign plaintiffs seeking redres for injuries go throughed abroad. Among the most notable is access by the agency of groups of claimants to Federal authority of Civil Procedure 23, which allows the aggregation of a collection of plaintiffs and their claims into a single or multiple related classes.6 Largely unique to U courts,7 the class action device allows potential plaintiffs to give chase to "issues . . . public to the class as a whole" which "turn upon questions of law applicable in the same manner to each member of the class" within a single action.8

Rule 23's primary intention when originally drafted in the early 1960 was to provide a mechanism for dealing with suits involving significant numbers of potential plaintiffs with reasonably small claims. a certain number of of the types of cases that the drafters envisioned included securities and shareholder actions and aggregated civil rights suits.9 Mass tort actions, like as environmental class actions, were originally foreseen as suitable for class certification, on the other hand it appears the advisory committee sought to specifically reject such actions from certification.10 However, as the oftenness of accident claims increased, courts began to recognize the economic advantage of aggregating individual actions involving mass torts and have since liberalized their allowance of certifications below Rule 23.11 This shift has not entirely calmed the waters for those seeking certification in mass tort cases, and it remains class action law's greatest in quantity contentious issue as federal and state courts continue to deal with the competing advantages and disadvantages of applying command 23 to tort law.12