How Private Law Could Help with “Unfinished Business”: A Comment on Leora Bilsky’s The Holocaust, Corporations and the Law

Mayo Moran is Provost and Vice-Chancellor of Trinity College, University of Toronto.  She previously served as Dean and James M Tory Professor of Law at the University of Toronto Law School.  Provost Moran has assisted with the implementation of the Indian Residential Schools Agreement, chairing a committee that oversees the tribunal that awards compensation for physical and sexual abuse.  She has written on the reasonable personlegal theory and the Chinese Canadian Head Tax case.  Her current research focuses on the role of law in redressing historic injustice.  Her new book, The Problem of the Past and How to Fix It, is forthcoming from Oxford University Press in 2020.  In addition to private law and legal theory, she currently teaches a course called “Ten Cases that Changed the World”. 

One of the central ambitions of Leora Bilsky’s excellent new book Unfinished Business is to cast new light on what the Nuremberg model obscures–the complicity, particularly economic complicity, of the private sector in enabling the mass atrocity of the Holocaust.  The Nuremberg model, Bilsky points out, “failed to comprehensively address the responsibility of economic ‘enablers’”  (1).  In the 1990s as Holocaust victims and former slave labourers filed class actions in US courts against Swiss banks and German companies, the law inched closer to addressing this larger and more diffuse responsibility for atrocity.  But as Bilsky notes, while the settlement of these claims may have been an unprecedented win in financial terms (1.25B by the Swiss banks and 5B by German corporations), for many commentators, it came at too high a cost.  The fact of settlement and its nature have tended to be seen as a missed opportunity to elucidate the nature of corporate responsibility for massive human rights violations.  But Bilsky’s reconceptualization of the significance of Transnational Holocaust Litigation (THL) challenges this conventional reading, arguing instead that it actually holds powerful lessons. THL, she points out, was one of the only instances in which “victims succeeded in making corporations pay huge amounts to compensate victims and acknowledge responsibility by opening their internal archives to research and publishing the findings” (3).   And with the growth of transnational corporate influence, such accountability is increasingly important.  So one particular promise of THL may accordingly be found in its ability to serve as a model for holding large transnational corporations liable for human rights abuses (2). 

Bilsky’s illuminating reconceptualization of THL is powerful and potentially extends well beyond the immediate lessons she focuses on in the book.  Making good on this possibility, however, may require some refinements in the conception of responsibility that she articulates. One of Bilsky’s overarching goals is to challenge the critiques that suggest that civil litigation and settlement are inapt ways to respond to grave human rights abuses.  For Bilsky the strength of THL is found in its “hybridity”—particularly of collective and individual responsibility.  Though made up of many elements, she identifies the two main strands of this hybrid form as international criminal law and American structural reform litigation.   It is here I would like to pause to suggest that this approach might benefit from some rethinking.  International criminal law is intensely individualized and morally laden.  Its contribution to THL is found in its normative power, which enables it to overcome problems of time and space—thus neutralizing obstacles such as limitations periods and immunities.   Complementing this is structural reform litigation.  It holds out the promise of responsiveness to bureaucratic violations of human rights, but only if it abandons the cornerstone of civil litigation—the principle of individual liability.  Bilsky does draw important features of her rereading of THL from this structural reform strand including the aggregated nature of both plaintiffs and defendants and perhaps more importantly, the managerial proactive role of the court.  However, structural reform litigation, with its roots in US constitutional law, also creates many other challenges for Bilsky’s account of responsibility.  This leads me to wonder whether it wouldn’t have been preferable for her hybrid model to draw more of its strength and normative content from the private law underpinnings that are so crucial to THL.  

This is not easy however.  The role that private law’s distinctive conception of responsibility could play in Bilsky’s hybrid approach is limited by her view that adopting the structural reform model requires giving up on individual liability.   This is a large concession and one that seems shaped by the sense that individual responsibility closely resembles criminal responsibility despite Bilsky’s obvious determination to distance her account from that paradigm.   ‘Individual’ liability in private law has from the beginning of course encompassed the liability of collective entities—from corporations to other institutions with legal personality to public authorities and indeed the state itself.   It is certainly true today that collective entities are far more likely to be defendants in private law actions than individuals.   However, and much more importantly for Bilsky’s account, since the development of the ‘general duty’ of care in negligence, private law responsibility has been in the process of a transition away from the ‘single wrongdoer’ conception of responsibility.  This shift is the result of an effort to capture the more complex, overlapping and attenuated forms of culpability that characterize modern life—the very kind of institutionalized responsibility that THL engaged and that Bilsky seeks to defend.  In fact, this more complex diffuse understanding of responsibility is now absolutely central to civil liability.  This is especially salient for Bilsky’s retelling of THL: from the private law perspective there is nothing inherently problematic about imposing such liability on a collective entity and it is not conventionally thought of as raising difficult questions of collective responsibility.  

 With this understanding of ‘individual responsibility’ in hand, it is possible to see how it could play a more constitutive role in Bilsky’s hybrid account—a role that would enrich the theory and assist with a number of features of THL that seem challenging for the structural reform model.  The most striking example relates to remedy.  Under the structural reform model that Bilsky borrows from Fiss, the remedy is not about the past but about the future.  It aims at preventing future violations of constitutional values and hence the injunction is the standard remedy.  Yet monetary compensation was a major part of THL remedies.   Such remedies were also overwhelmingly about the past, not the future.  Because this backward-looking orientation and its related compensation model are at odds with the structural reform class action, Bilsky considers it one of the most challenging aspects of her account of THL.  And indeed, while compensation to individuals is sometimes described by Bilsky using the language of justice, it also figures as an incentive to lawyers to enforce public goals (54) or to encourage corporations to internalize norms (73).  And although both of these effects may well be true, they miss, in my view, an opportunity to harness the normative power of private law responsibility to provide a substantive account of why reparations—or at least an effort at repair—matter intrinsically to THL and not just pragmatically.   Indeed, later in her excellent account of the claims process, Bilsky re-infuses her analysis with some of the private law content that she appeared to reject earlier.  For example, she challenges the efforts of defendants to characterize their payments as ‘humanitarian’ and notes, rightly I would suggest, that “private law’s conceptualization of responsibility as relational can be approximated through a class action settlement and does not require a full trial” (124).  But this sits awkwardly with the earlier commitment to the idea of giving up on individual responsibility.  It could be of course that such responsibility matters at the claims process level but not at the class action level, but this renders compensation conceptually confusing and problematic.   

Her analysis of claims processes also gestures towards the important idea that in the private law of responsibility, damages express the demand that the wrongdoer attempt to make the victim whole by compensating her for violations of her physical integrity, autonomy or property interests, for example.  Understood in this way, monetary payments from the wrongdoer to the victim are grounded in private law’s respect for personhood–compensation is the mechanism by which the law insists that wrongful injuries be repaired by those who inflicted them.  Here, however, it must be acknowledged that money is inevitably inadequate as a means of making a victim whole.   Moreover, the graver the injustice, the more pronounced that inadequacy will be.  Thus it is not surprising that the more that private law is called upon to address especially grievous violations of personhood, the more common it will be for other measures to accompany the demand for compensation. Bilsky does a brilliant job of elucidating the salience of these dimensions of THL—in particular with her discussion of the historical studies.  But the strength of this account would be greatly fortified by calling upon the normative power of private law’s reparative justice impulse rather than giving up on the contribution that the civil conception of individual liability could make.  

Recognizing the constitutive role of private law and the reparative justice impulse in THL itself would also extend the reach of Bilsky’s reading in important ways.  One important critique of THL is that is was ‘all about the money’.   The horrific scale of the wrongs addressed by THL make some version of this worry virtually inevitable, and perhaps that is a good thing.  Commodifying and thereby risking trivializing profound suffering is a concern we must remain alive to.   The overall trajectory of Bilsky’s argument makes a strong case for why this concern may not be as central as some critics might suggest.  However, the hybrid account of responsibility with its indebtedness to the structural reform model risks making compensation look like an incentive regime that has little to do with recognition of the personhood of the victims.   There certainly were some flaws in how THL addressed the compensation questions.  But as Bilsky often obliquely suggests, the most important of these were failures of justice, not of incentive structures.   Only an account that gives fuller play to a robust understanding of private law’s distinctive conception of responsibility can grapple with such failures of justice and the lessons they hold .   

Let me close with some related thoughts about the reach of Bilsky’s re-reading of THL.  She gestures towards transnational corporate accountability as one potential sphere of THL influence and I would like to suggest that in fact THL has already served as a powerful source of inspiration.   In the interests of brevity let me give just two examples.  First, in Canada, the massive litigation (some individual, some class actions) that focused on the legacy of Indian residential schools has significant resonance with Bilsky’s account of THL.  In 2007, it too resulted in a massive settlement—now approaching 6B CAD—and gave rise to a complex compensation regime that includes nearly 38,000 adjudicated claims, as well as an important Truth Commission among other features.   The second example is the effort to litigate reparations for slavery in the US.  Clearly inspired by the THL slave labour cases, the litigation itself largely failed and did not generate significant settlements.  Nonetheless, the pressures generated by the articulation of the reparations claims—particularly the most powerful slave labour ones—gave rise to a range of institutional responses that also have a strong affinity with Bilsky’s account of THL.  Ordinances designed to force disclosure of links to slavery were passed in several jurisdictions, economists have begun to attempt to quantify the profits of slavery and many truth-seeking projects and commemorative projects have been undertaken at an institutional level.  One striking example is found at Georgetown University.  After studying its links to slavery and in particular to a significant slave sale in 1838, the university offered preferential admissions to descendants of those who were sold as slaves.  It did so specifically on the ground of reparative justice.  

In these and many other examples of hybrid claims that seek to redress grievous large-scale wrongs, Bilsky’s reconceptualization provides rich material for thinking through the complex questions of responsibility, redress, and history at the heart of THL.   Infusing her account with richer content from private law would only assist in illuminating the important lessons of THL that she so expertly draws out.