A Brief History of Mass Restitution Litigation in the United States

Abstract

This essay is a chapter in a book entitled Calling Power to Account, which has been edited by David Dyzenhaus and Mayo Moran and will be published by the University of Toronto Press. The book contains essays written in response to Mack v. Canada, also known as the Head Tax Case. In Mack, a Chinese-Canadian who immigrated to British Columbia over 70 years ago filed a class action demanding that the Canadian government provide restitution to all Chinese-Canadians who, like him, paid a tax to be permitted to enter the country. The case was dismissed. This essay provides a framework against which the Mack case can be compared with similar cases in the United States. I argue that over the past ten years a new form of private law claim has evolved which is a blend between a class action for personal or dignitary tort and a claim for restitution or unjust enrichment. Using the tobacco litigation brought by the states for the restitution of health-care costs and the Holocaust slavery litigation brought by persons who were forced to work as slaves for German corporations during the Second World War, I argue that mass restitution is a novel form of private law action designed to use the procedural advantages of doctrines such as tracing and constructive trust to avoid certain doctrines in tort law which would make class action torts for the same wrongs almost impossible. The essay ends with an examination of the potential use of mass restitution by activists who want to private law to get compensation for African-American whose ancestors were enslaved in North America.