Public Rights, Global Perspectives, and Common Law
37 Pages Posted: 25 Feb 2009 Last revised: 9 Jan 2012
Date Written: February 25, 2009
Public rights litigation in the United States is often associated with constitutional and statutory issues of equality and due process and cases like Muller v. Oregon, Brown v. Board of Education and Lawrence v. Texas. In each of these cases, litigators articulated a global perspective on the issue - e.g., women's work, racial segregation, gay rights -- that informed the judicial consideration of the matter. In recent years and despite strong historical evidence supporting such an approach, this overtly international contextual analysis has come under attack, particularly in constitutional cases.
However, the concept of public rights litigation should also encompass common law cases in areas such as housing, tort, consumer law and contract which have significant public impacts and affect important individual rights. In these areas, an appreciation of global context is also important to decisionmaking and, unlike the constitutional and statutory areas, appears wholly uncontroversial. Indeed, references to relevant transnational law fit squarely within the venerable tradition of common law reasoning. With this in mind, this paper takes a preliminary look at the role of international human rights law in contemporary common law advocacy and adjudication. Analyzing a series of common law cases involving housing, workplace torts and consumer protection, the paper speculates about the impact that international human rights law and comparative perspectives might have on public rights litigation in these important areas of public concern.
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