public rights, common law, second-hand smoke, warranty of habitability, violence against women, intentional misrepresentation, porous borders
This Article sets out the case that common law adjudication involving such claims as contractual breaches, wrongful termination, and tort can be, and often are, public rights litigation. Many common law decisions have significant impacts in the community, and—because of the nature of precedent—become quickly embedded in the law where they contribute to the outcomes of future cases as well. Common law cases are a particularly important aspect of public rights litigation because of the paucity of constitutional protections for economic and social rights. In the absence of constitutional protections for such rights, rigorous enforcement of common law claims addressing housing, work, and marketplace transactions can go at least part way to filling that gap. Further, as federal courts cut back on the scope of available statutory remedies, common law litigation may continue to offer relief to litigants. This Article has also argued that in litigating and adjudicating these common law claims, recognition of global context is at least as important as it is when constitutional claims are at stake. Indeed, in common law cases, such an approach has been generally well-accepted for centuries, if somewhat less frequent in recent decades. From the judicial perspective, inquiry into global context has historically contributed to judges’ ability to reach sound conclusions in cases where domestic precedent does not provide for the resolution of the matter. In such cases, international and comparative materials do not substitute for binding precedent, they do not dictate results, but they provide additional relevant materials, examples and perspectives for thoughtful judges who are called on to consider open questions in the common law tradition. From the perspective of public interest litigators working in the common law, references to global context may be useful for many of the same reasons. A soundly-reasoned opinion from a peer foreign court that has grappled with the same issues may provide important confirmation of the workability of an otherwise “novel” approach urged by counsel. Similarly, references to international law may help open a domestic court’s eyes to the global significance of a seemingly private, domestic issue, and its relationship to larger issues of human rights and human dignity.
Martha F. Davis,
Public Rights, Global Perspectives, and Common Law,
36 Fordham Urb. L.J. 653
Available at: https://ir.lawnet.fordham.edu/ulj/vol36/iss4/2