Using Foreign Law in Interpreting the U.S. Constitution

Those interested in this subject might want to check out today’s Supreme Court decision in Daimler AG v. Bauman. The question is whether California courts could have jurisdiction over Daimler AG, a German company whose subsidiaries do business in California, for actions allegedly committed by another Daimler AG subsidiary in Argentina:

The complaint alleged that during Argentina’s 1976-1983 “Dirty War,” Daimler’s Argentinian subsidiary, Mercedes-Benz Argentina (MB Argentina) collaborated with state security forces to kidnap, detain, torture, and kill certain MB Argentina workers, among them, plaintiffs or persons closely related to plaintiffs.

Since the Due Process Clause bars state courts from exercising jurisdiction if there is not a sufficient connection between the state and the conduct or the defendant, the question is constitutional in stature. And, after a long discussion focused on American law, Justice Ginsburg’s near-unanimous majority opinion (for all the Justices except Justice Sotomayor) added this:

The Ninth Circuit, moreover, paid little heed to the risks to international comity its expansive view of general jurisdiction posed. Other nations do not share the uninhibited approach to personal jurisdiction advanced by the Court of Appeals in this case. In the European Union, for example, a corporation may generally be sued in the nation in which it is “domiciled,” a term defined to refer only to the location of the corporation’s “statutory seat,” “central administration,” or “principal place of business.” The Solicitor General informs us, in this regard, that “foreign governments’ objections to some domestic courts’ expansive views of general jurisdiction have in the past impeded negotiations of international agreements on the reciprocal recognition and enforcement of judgments.” Considerations of international rapport thus reinforce our determination that subjecting Daimler to the general jurisdiction of courts in California would not accord with the “fair play and substantial justice” due process demands.

Is considering foreign law proper here, especially since it’s being considered not as a normative guide (“other nations take this view, so it makes it more likely that the view is right”) but as relevant to the practical impact of the decision (“other nations take this view, so it will create friction if states take a contrary view with respect to those nations’ corporate citizens”)? Is it improper? Is it fine in principle, but logically or pragmatically unsound in this instance? And, if one shares Justice Scalia’s and Justice Thomas’s frequent skepticism about the use of foreign law in American constitutional decisionmaking, should one be mollified here by Justice Scalia’s and Justice Thomas’s (and the other conservatives’) joining the opinion?

For more on the history of foreign law in American courts, see Steven Calabresi & Stephanie Dotson Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and The Juvenile Death Penalty Decision, 47 Wm. & Mary L. Rev. 743 (2005) (cowritten by Steven Calabresi, a cofounder of the Federalist Society and a noted conservative constitutional scholar). For another example of the use of foreign law in an opinion joined by conservative Justices — indeed, written by Justice Scalia — see here, though there are some important distinctions between that case and this one (and, of course, the cases involving the more controversial uses of foreign law, such as Lawrence v. Texas and the decisions barring the death penalty for juvenile killers and mentally retarded killers). For my general thoughts on the use of foreign law in American court decisions, see this recently published article.