The Limits of Lex Americana: The Holocaust Restitution Litigation as a Cul-de-Sac of International Human-Rights Law

This article addresses the Holocaust-restitution litigation of the late 1990s, which resulted in spectacular settlements totaling over $9 billion and culminated with an Executive Agreement between Germany and the United States in 2000. Prominent law scholars such as NYU Professor Burt Neuborne and Michael Bazyler, author of Holocaust Justice: The Battle for Restitution in America\u27s Courts (2003) and Holocaust Restitution: Perspectives on the Litigation and its Legacy (2006), have celebrated these lawsuits as a model for international human rights. Neuborne has extolled the litigation as the dawn of an era of “lex Americana,” in which multinational corporations (MNCs) have a “moral obligation … to live by American rules of fundamental fairness, both substantive and procedural, if they wish to participate in the remarkable success of this economic, social, and political culture. Bazyler is equally enthusiastic: “[T]he Holocaust restitution cases [are] beco! ming the principal model for victims and their representatives seeking to right past wrongs.” Legal scholarship has thus contributed to a heroic image of plaintiffs slaying the Goliath of global corporations in international human-rights litigation. This fits larger trends in foreign relations law that Anne-Marie Slaughter and David Bosco identify as “Plaintiff’s Diplomacy.” In Plaintiff’s Diplomacy, individuals directly shape foreign affairs by suing in the courts, thus bypassing the traditional diplomacy between states. According to this model, private parties can no longer be shut out. Bazyler’s summary of the Holocaust-era litigation provides an example: “The ‘one-two punch’ of American lawyers first filing the class action lawsuits against the European defendants [MNCs] and American officials at the state and local levels then threatening to exclude the defendants from profitable U.S. [business] deals … was the perfect strategy… But Bazyler vastly exaggerates the importance of litigantion. The State Department had already been seeking to settle su! rvivors’ claims for several years in advance of any lawsuits. This article makes three original contributions. First, contrary to the heroic narrative of “plaintiffs’ diplomacy,” it argues that the United States’ political branches contributed more to the successful settlements than litigation. Instead of individuals mobilizing the courts to change the behavior of recalcitrant states, the process worked in reverse. States-parties led the way. Second, using historical evidence, this article examines the survivors’ legal claims, which sounded in restitution. Because the Holocaust survivors’ succeeded in large settlements and because their suffering was beyond question, scholars have simply taken it for granted that they advanced strong legal claims. Historical evidence shows that their claims were surprisingly weak. Third, this article tests Bazyler and Neuborne’s hypothesis that the Holocaust-era litigation provides a model for successful lawsuits against MNCs that perpetrate human-rights violations. By examining the legacy o! f the Holocaust-era lawsuits in other international human-rights litigation, this article shows that the plaintiffs’ restitutionary theories of recovery neither have nor can provide such a model