Faculty Journal Articles and Book Chapters


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.

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