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The newness thesis holds that a court will find it more difficult to act to enforce rights to the extent that they are new - unintrenched in existing public understandings, institutions and procedures. This thesis, if true, tends to rebut suggestions that there are certain types of rights claims that are inherently less susceptible of judicial adjudication. Since the obstacles posed by newness are perfectly real whilst they last, however, the newness thesis also helps us to understand the practical realities of adjudication in an age where the presence of expansive frameworks of rights mean courts often confront rights questions that displaying newness. The thesis also helps us to understand what sorts of support will assist courts in confronting newness, and why rights interpretation in contexts of newness must be understood as a broader public activity, not a judicial one.
E-Mail: james.fowkes@yale.edu
