Public rights, global perspectives, and common law.

• Author: Davis, Martha F.

Introduction I. Public Rights Litigation and the Common Law A. Second-hand Smoke and the Implied Warranty of Habitability: Poyck v. Bryant B. Violence Against Women and Public Policy: Apessos v. Memorial Press Group C. Tort Claims for Intentional Misrepresentation in Real Estate Transactions: Below v. Norton II. Global Context in Common Law Cases A. The Porous Borders of Common Law B. Global Context in Three Illustrative Contemporary Cases C. Challenges for Judges and Litigators Conclusion The Future of Public Rights Litigation INTRODUCTION

Public rights litigation has long been associated with constitutional issues. One of the earliest and best known public rights litigators of the twentieth century--the "people's lawyer" Louis Brandeis--filed his eponymous "Brandeis brief" in Muller v. Oregon, a 1908 case involving the constitutional right to freedom of contract. (1) In the mid-twentieth century, the litigation campaign of the NAACP Legal Defense and Educational Fund, Inc. ("Inc. Fund") to desegregate public education under the Federal Constitution's Equal Protection Clause took its place as the iconic example of public rights litigation. (2) More recent examples of Constitution-based public rights litigation, such as the current litigation campaign for gay marriage, have cited the Inc. Fund's incremental campaign for shifts in constitutional interpretation as a model and inspiration. (3)

In each of these campaigns, the litigators were keenly aware of the global context in which they acted. They communicated this perspective in their briefs, raising the awareness of the judges and the public. Depending on the particular case, this global context might be shared through references to comparative law and practices, or by citations to international laws that embody the collective judgments of many nations. For example, Brandeis's brief for the state in Muller v. Oregon supported limitations on women's' work hours to protect their health, and included pages of comparative data describing the labor practices of other nations. (4) Indeed, Part I of the brief specifically addressed legislation both "foreign and American," while Part II considered "[t]he world's experience upon which the legislation limiting the hours of labor for women is based." (5)

In the 1950s, the Inc. Fund's best known case, Brown v. Board of Education, was explicitly litigated in the global context of the cold war. Before the U.S. Supreme Court, the U.S. government's amicus brief noted that the United States' laws supporting racial segregation isolated it from other peer nations. (6) According to the government, "[t]he existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination ... raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith." (7) Though the Court in Brown did not specifically cite the argument, a number of scholars have noted the role that this global context, overtly referenced in the litigation, played in the case's outcome. (8)

In recent cases pressing for gay rights under both state and federal constitutions, litigants have cited both comparative and international law to press their points, including decisions of Canadian and South African courts, the European Court of Justice, and policies of the Netherlands, among other nations. (9) For example, an amicus brief filed by the International Human Rights Organizations before the California Court of Appeals in In re Marriage Cases argued that "[t]he broad trend in other democratic societies is towards equal treatment of individuals in different-sex and same-sex couples," and provided extensive examples. (10) Similar briefs were filed before the U.S. Supreme Court in Lawrence v. Texas, citing both international and foreign law. (11) The Supreme Court's opinion in Lawrence cited these contextual global materials in determining that a Texas law barring same sex sodomy was an unconstitutional violation of privacy rights protected by the Constitution's Due Process Clause. (12)

The high public profiles of these litigation campaigns may suggest that public rights litigation is inherently constitutional in nature, and that the importance of global context is strongest in such cases. But the phrase "public rights" is not a defined term of art, and there is no reason that it must be limited solely to individual or collective assertions of rights against the government involving statutory or constitutional protections. (13) Taken literally, "public rights" could simply refer to assertions of rights against governments or private individuals in matters of broad public import that evoke a significant level of public concern and interest. These matters would certainly include so-called private matters with public consequences, such as housing, consumer affairs and family law. As Professor Hugh Collins recently observed:

Private law delivers on the liberal state's promise to respect the freedom of individuals. Protection of civil liberties through public law secures for citizens freedom from the misuse of state force. This public law provides negative freedom for individuals. In contrast, private law enables members of the society to use this freedom in constructive ways--to make a home, to earn an income from business activities or a job, and to acquire possessions and enjoy services.... Private law constructs a framework of opportunities for individuals in cooperation with others to become authors of their own lives. (14) Thus, while private matters involve assertions of rights between individuals rather than against the government, as Collins indicates, the adjudication of such private rights will often have a significant public impact on the "positive" freedoms of individuals. (15)

These sorts of private cases with public impacts are often the bread-and-butter of federally funded legal services offices for the poor. (16) Indeed, the early social change agenda for legal services lawyers in the 1960s included litigation intended to restructure landlord-tenant relations. (17) Though ostensibly concerned with private housing contracts, as Professor Mary Ann Glendon has recounted, many courts were-ready to see "a public law dimension in private litigation" involving tenancies. (18) Then and now, the public nature of the issues is reinforced by the sheer size of the caseload. For example, with almost 10,000 homeless individuals sleeping in shelters in New York City as of the end of 2008, a court ruling either expanding or limiting tenants' rights to "security of tenure" under common law would have a significant public impact, even though the particular case itself arose from a dispute over individual rights and obligations in a private contractual setting. (19) Interestingly, because the American Constitution is primarily concerned with protecting civil, political, and procedural rights, it is in the so-called private litigation context where most basic human needs identified as economic and social rights--rights to housing, rights to work, rights to economic goods--are consistently addressed in the United States. (20)

Under this broader understanding of public rights--encompassing both governmental and individual claims with public impacts--adjudicators may be called on to employ several alternative modes of legal reasoning. In constitutional or statutory litigation, the judge must be guided by the limitations imposed by the democratic process, and is expected to construe rights to strictly conform to the legislature's or the people's intentions. Indeed, these limits on judicial reasoning in constitutional and statutory cases serve as a counter-balance to the perceived counter-majoritarian nature of the federal (and to a lesser extent, the state) judiciary. (21) To be sure, "Herculean" judging may sometimes be necessary to address open questions, but the judicial starting place is firmly grounded in the legislature's language and intent. (22)

Much litigation involving claims between private individuals, however, involves no statutes or legislative intent or public vote, but arises under the common law. (23) In these cases, the starting place is different. There is no limiting statutory or constitutional text providing a direct constraint on judicial approaches. Rather, considering these common law cases, judges engage in traditional common law reasoning, beginning their analysis with an examination of existing precedent.

Without the obvious limitations imposed by statutory or constitutional text, the path of common law reasoning can seem freewheeling, yet it essentially parallels the process of textual interpretation with constraints instead posed by relevant judicial decisions--or "experiences"--of the past. In his 1949 book, An Introduction to Legal Reasoning, Edward H. Levi wrote of the common law that "the basic pattern of legal reasoning is reasoning by example. It is reasoning from case to case." (24) Chief Justice Margaret Marshall of the Massachusetts Supreme Judicial Court recently endorsed Oliver Wendell Holmes's famous formulation--"The life of the law has not been logic; it has been experience"--as peculiarly relevant to common law courts. (25) Writing from a more contemporary vantage than Holmes or Levi, and incorporating both formulations, Professor David Strauss identified three premises that underlie a common law approach: first, "humility," in the recognition that an individual decision-maker should defer at least some degree to collective wisdom reflected in past decisions in similar circumstances; second, "empiricism," in identifying and crediting what has worked in the past or in related contexts; third, "innovation," allowing room for new ideas, again balanced with due regard for precedents of the past. (26) While Professor Strauss articulates these premises in the context of judicial decision-making, he notes that...