Abstract

http://ssrn.com/abstract=2226704
 
 

Footnotes (100)



 


 



Spatial Legality, Due Process, and Choice of Law in Human Rights Litigation Under U.S. State Law


Anthony J. Colangelo


Southern Methodist University - Dedman School of Law

Kristina A. Kiik


U.S. District Court for the Northern District of Texas

February 28, 2013

UC Irvine Law Review, Vol. 3, 2013

Abstract:     
Framing the topic of this symposium as “Human Rights Litigation in State Courts and Under State Law” effectively orients the discussion around the rights of plaintiffs from the outset, the central question being whether they have enforceable rights in U.S. state courts under state law. Standing in the way are various legal doctrines. In broad strokes, the relevant questions become: Which doctrines do, or should, either facilitate or obstruct human rights litigation in U.S. state courts and under state law? How are courts applying these doctrines? How should courts apply these doctrines?

Many of the doctrines that potentially stand in the way of human rights claims in state court and under state law reflect the interests of states — including U.S. states, the United States, and foreign nations. State-centered doctrines like sovereign interference, comity, preemption, governmental interest analysis, the political question doctrine, and other doctrines deferential to the political branches threaten to block human rights litigation in state courts and under state law. The discussion thus tends to boil down to human rights versus states — or, perhaps more accurately, plaintiffs’ rights versus legal doctrines that capture some non-human rights interest of states.

This contribution aims to add another rights dimension to this rapidly evolving doctrinal and normative puzzle by reorienting the discussion around the rights of defendants. More specifically, we ask whether there are defendants’ rights that may counterbalance plaintiffs’ rights in some situations. We believe there are, and that these rights can and should inform how courts decide human rights cases in state courts and under state law. Because our primary concern is choice of law as opposed to choice of forum, we focus principally on issues related to the application of state law rather than on issues related to state courts entertaining suit. As to the choice of law, we use the concept of what we will refer to as “spatial legality” to identify and frame two main rights: the right to fair notice of the law, and the right to compliance with the law. We then apply these rights through the Due Process Clause to show how they can and should influence human rights litigation under state law. First, we conclude that even if personal jurisdiction exists over a defendant, if the conduct giving rise to the suit exhibits no jurisdictional nexus to the United States, application of purely U.S. law — like state tort law — may violate defendants’ rights to fair notice of the law. Second, we suggest that where purely U.S. law — like state tort law — prohibits or creates liability for conduct compelled or required under foreign law in the place where the conduct occurs, defendants may have a due process objection because compliance with the law is impossible. Finally, we argue that both of these objections largely vanish where the U.S. law sought to be applied to foreign conduct implements an international law that imposes liability.

Number of Pages in PDF File: 17

Keywords: Jurisdiction, Choice of Law, International Law, Foreign Relations Law

Accepted Paper Series


Download This Paper

Date posted: March 5, 2013  

Suggested Citation

Colangelo, Anthony J. and Kiik, Kristina A., Spatial Legality, Due Process, and Choice of Law in Human Rights Litigation Under U.S. State Law (February 28, 2013). UC Irvine Law Review, Vol. 3, 2013. Available at SSRN: http://ssrn.com/abstract=2226704

Contact Information

Anthony J. Colangelo (Contact Author)
Southern Methodist University - Dedman School of Law ( email )
P.O. Box 750116
Dallas, TX 75275
United States
2147682372 (Phone)
Kristina A. Kiik
U.S. District Court for the Northern District of Texas ( email )
1100 Commerce Street Room 1359
Dallas, TX 75242
United States
214-753-2355 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 183
Downloads: 25
Footnotes:  100

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.297 seconds