Int’l ATJ Blog — EU Moves Toward “Collective Redress” Procedures — Ben Kaplan and Nuremberg

I have put the International Access to Justice Blog on the right menu.  It is compiled by Martin Gramatikov in the Netherlands.

Yesterday he posted about the EU Justice Council, which seems like a Council of State AGs for the member states of the EU.  The agenda for their next meeting reminds us both of how wonderful it is to see the process of European integration, and of how lucky we are in certain aspects of the US justice system.

For example, the Council is moving to create systems of “collective redress.”  While many if not all of the member states allow for injunctions, many do not now allow for group damage actions.  While US Supreme Court decisions in recent decades have often made it harder to pursue class actions, the fact remains that this is an important mechanism for dealing with malfeasance, and we owe a great debt to the drafters of the Federal Rules, particularly of the mid-60 revisions (Wikipedia history here).  If only we had had some earlier class actions against banks and mortgage companies in the US, we might be in far better economic shape today.  Here is the request for comment, called a “consultation” in the EU and most of the world, on the subject.  (“Consultations” are also used early in the process to collect ideas — something we might do more of in the US.)

p.s. You never know where writing a blog will take you.  In this case looking into the history of class actions took me to the life of Ben Kaplan, who many of the lawyers among  you will have unconsciously been influenced by since he was one of the authors of what is now Field, Kaplan, and Clermont on Civil Procedure.

It was only after appearing in front of him in the Massachusetts Appeals Court, and learning more of his life, Guardian obit here, that I came to understand that just like the Rules, that book (the first casebook on the Federal Rules) is about fairness and a vision of the world.  Kaplan’s life amazes.  He was involved in the Nuremburg prosecutions, the Ulysses case, as well as the Federal Rules, not to mention being on the Massachusetts Supreme Judicial Court and (on recall) the Massachusetts Appeals Court.  I spent enough time talking to him to know that he was supremely and genuinely modest — something impossible to understand, given his achievements and impact.

To me, however, he wrote his own epitaph in talking about the role of Justice Jackson in the Nuremberg prosecutions.  As the New York Times concluded in its obituary, Kaplan spoke in 1995 at a panel discussion (on YouTube here) as follows about his work on the trial preparation team:

He spoke about the seeming impossibility of composing an indictment that would bridge the Anglo-American, French and Russian legal traditions, and he called the enterprise of trial preparation “the terrible task of trying to formulate, to do something, to prove themes that had never before been litigated.”

Justice Jackson asked him to be one of the prosecutors who presented the case to the international tribunal, but he declined. On his way home from Germany, he recalled, he was worried.

“How would the case be tried? What would be the outcome? This was all so chancy,” he said, though he added: “That showed how silly I was. What I did not understand was the lesson to me of Nuremberg, which is this: Vision conquers all. Vision conquers all. And Jackson had the vision.”

Justice Kaplan, of course, had the vision, and now lets hope that Europe will benefit as it considers “Collective Redress,” just as Europe did together with the whole world, from Kaplan’s enormous role at Nuremberg.  This is surely a legacy to ponder as we are likely to move into yet another round of international human rights trials — which are, after all, the ultimate vision-inspired “collective redress.”  Surely the EU too is part of what the vision of the Nuremberg trials made possible.

Upate:  The speeches from Ben Kaplan’s Memorial Service are now online.  What a range of eulogies, from Ruth Ginzburg to Martha Minnow, from Stephen Breyer to Lloyd Weinreb, from Raya Dreben, to Marjorie Heins.


About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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1 Response to Int’l ATJ Blog — EU Moves Toward “Collective Redress” Procedures — Ben Kaplan and Nuremberg

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