Institute for Justice and Democracy in Haiti

Constitutional Law Scholars and Practitioners Support Cholera Appeal

Since the United Nations (UN) caused a deadly cholera epidemic in Haiti in 2010, it has used its immunity to avoid accountability for the epidemic. Cholera victims and their lawyers are now appealing a US court’s decision to uphold UN immunity in their case against the UN. Below is an amicus curiae (friend of the court) brief in support of the appeal, signed by six Constitutional Law Scholars and Practitioners, including the author of the brief.

Click HERE for the full document.


Steven D. Schwinn

June 3, 2015


Prospective amici curiae are scholars and practitioners of United States
Constitutional law.1 Together, Amici have substantial experience researching,
publishing, teaching, and litigating in the field of Constitutional law, particularly
on the constitutional right of access to the courts. Amici have a strong interest in
ensuring that immunity does not infringe on individual constitutional rights,
specifically the fundamental right of access to the courts. They submit their brief in
support of Plaintiffs-Appellants’ position that immunity should not be accorded to
the Defendants-Appellees in this case, where doing so would unconstitutionally
impinge on Plaintiffs-Appellants’ fundamental right of access to the courts.

The right to access to the courts is an ancient and fundamental right in our
constitutional tradition. It traces its roots to Magna Carta. Magna Carta, Chapters
39 and 40; see also William C. Koch, Jr., Reopening Tennessee’s Open Courts
Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee
Constitution, 27 U. Mem. L. Rev. 333, 349-75 (1997) (tracing the history of
Chapters 39 and 40). It is also reflected in early state constitutions. See, e.g., Md.
Const. art. XIX (“That every man, for any injury done to him in his person or
property, ought to have remedy by course of the Law of the land, and ought to
have justice and right, freely without sale, fully without any denial, and speedily
without delay, according to the Law of the land.”). Although it is not specifically
mentioned in the Federal Constitution, the Supreme Court has recognized the right
since 1803. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (“The very
essence of civil liberty certainly consists in the right of every individual to claim
the protection of the laws, whenever he receives an injury.”). Today, the Supreme
Court locates the right in various provisions of the Constitution, including due
process and equal protection. M.L.B. v. S.L.J., 519 U.S. 102, 120-21 (1996).

In perhaps its most succinct form, the right means that the government may
not “bolt the door to equal justice.”

Click HERE for the full document.

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