State Remedies for Human Rights

89 Pages Posted: 15 Mar 2018

See all articles by Seth Davis

Seth Davis

University of California, Berkeley School of Law

Christopher A. Whytock

University of California, Irvine, School of Law

Date Written: March 13, 2018

Abstract

Within the United States, states are the source of remedies for most legal wrongs. State law provides remedies for common law torts, statutory violations, and constitutional rights, and state courts are available to parties seeking these remedies. May states also provide remedies for the victims of international human rights violations? With the Supreme Court closing the door on human rights litigation in U.S. federal courts under the Alien Tort Statute, and with plaintiffs therefore turning to state courts and state law to redress violations of international human rights, this question has become especially important.

The dominant view among courts and commentators, however, treats human rights remedies as a foreign relations function committed to the federal government. If the federal government decides not to provide these remedies, then, this view holds, states must not provide them either.

This Article challenges that position. It argues that states may provide remedies for international human rights, much as they do for torts and civil rights. States provide law and courts for the redress of wrongs as a matter of course, particularly the types of torts that most human rights litigation addresses. Within the federal system, states have independent authority to provide remedies for legal wrongs. State courts and state law therefore play a fundamental role in fulfilling the aspiration that rights entail remedies. Under state law, federal law, and international law, states have a recognized interest in providing redress for human rights violations. And in many cases, a state’s interest in providing remedies for human rights violations will outweigh the business or foreign relations costs of human rights litigation that are often invoked to deny remedies.

This Article’s theory of state remedies for human rights has doctrinal and normative implications. The proper application of various doctrines that may limit access to state courts or the application of state law requires explicit consideration of the state interest in providing remedies for human rights. Normatively, this Article’s theory of state remedies for human rights provides a justification for doctrinal changes in order to accommodate that interest.

Keywords: Human Rights,Federalism,Federal Courts,Foreign Relations Law,International Law,Remedies,Civil Procedure,Removal,Political Question Doctrine,Personal Jurisdiction,Forum Non Conveniens,Choice of Law,Conflict of Laws,Private International Law,Preemption,Transnational Litigation,International Litigation

Suggested Citation

Davis, Seth and Whytock, Christopher A., State Remedies for Human Rights (March 13, 2018). Boston University Law Review, Vol. 98, No. 2, 2018, Forthcoming; UC Irvine School of Law Research Paper No. 2018-14. Available at SSRN: https://ssrn.com/abstract=3140089

Seth Davis

University of California, Berkeley School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

HOME PAGE: http://https://www.law.berkeley.edu/our-faculty/faculty-profiles/seth-davis/

Christopher A. Whytock (Contact Author)

University of California, Irvine, School of Law ( email )

401 East Peltason Drive, Suite 1000
Irvine, CA 92697-8000
United States
(949) 824-0496 (Phone)

HOME PAGE: http://www.law.uci.edu

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