Debadatta Bose (University of California, Berkeley – School of Law) has posted Can the Subaltern Sue? on SSRN. Here is the abstract:
Why do marginalized victims of corporate human rights abuses sue transnational corporations when their chances of winning compensation are almost zero? In cases like Nestlé v. Doe, foreign plaintiffs utilize private law tools like the Alien Tort Statute not necessarily to secure monetary compensation, but to assert themselves as holders of rights. In this Article, I argue that private law rights of action possess a unique, overlooked value: they function as relational epistemic rights. While dominant private law theories—Corrective Justice, Civil Recourse, and Relational Justice—reduce litigation to compensatory mechanisms, political entitlements or backup plans, they overlook the epistemic dimension of these rights of action most visible in corporate human rights litigation. For the subaltern, the right to sue in tort is the sole avenue to compel a powerful corporate wrongdoer to recognize them as a rightsholder. Drawing on Fricker’s theory of epistemic injustice, I argue in this Article that private law rights of action counteract participatory and hermeneutic injustice. It allows marginalized people to have their “day in court” against a powerful corporate wrongdoer, allowing the plaintiff to set the terms of post-wrong interactions and to label torture “torture”. By contrasting private lawsuits with alternatives like the 9/11 Victim Compensation Fund or truth commissions, the Article reveals that mere monetary compensation or aggregated public storytelling cannot substitute the interpersonal vindication of rights inherent in directly suing a wrongdoer corporation. Ultimately, the private right of action is a profound legal affirmation of dignity and a critical act of epistemic resistance against corporate domination.
Highly Recommended!
Readers interested in this paper may also be interested in Legal Theory Lexicon 108: Epistemic Injustice.
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