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Breyer on Giving Foreign Courts "A Little Boost Sometimes":
In a talk yesterday at the American Bar Association annual meeting, Justice Stephen Breyer gave an intriguing reason why he thinks the U.S. Supreme Court should cite foreign law: It can give "a little boost" to the judiciaries of other countries, helping to advance the rule of law outside the United States. Here's what Breyer said, in the course of justifying the practice of citing foreign law:
  "To tell you the truth, in some of these countries, they're just trying to create these independent judicial systems to protect human rights, contracts. If we cite them sometimes — not as binding, I promise, not as binding --well, that gives them a little boost sometimes . . . It sort of gives them a leg up for the rule of law."
  This reminds me a bit of the remarks by Justice Stevens in May suggesting that the U.S. Supreme Court should cite foreign courts to make sure that the U.S. Supreme Court remains influential outside our borders. It also seems to be another piece of evidence supporting the "shout out" theory of citing foreign courts offered by Professor (and former Breyer clerk) Tim Wu in Slate last year.

  Your thoughts?
Scott Scheule (mail) (www):
I'm nearly positive Justice Breyer has no duty, constitutional or otherwise, to lift other countries' judiciaries out of the mire. Besides, if these courts are behind us judicially -- which Breyer's theory demands -- then why are we citing to them? Surely the reverse is more appropriate.

I do like the term "shout out theory," though.
8.10.2005 3:39pm
OOSJ (mail) (www):
I live in one of those countries - Israel - and we have a Supreme Court that doubles as parent and legislature. Being cited by the US Supreme Court will just encourage them. The best thing the US Supreme Court could do to encourage the rule of law in other countries is to support it at home.
8.10.2005 3:43pm
John Jenkins (mail):
I'd also argue that it's largely ineffective. In countries where the rule of law is not well established, and most people don't give a fig about the United States Supreme Court, how is any citation going to grant any sort of legitimacy? The fact that the rule of law has *not* taken hold in a given country is a good reason not to cite to its courts, since those decisions might be the product of the lawlessness that surrounds them.
8.10.2005 3:43pm
Shelby (mail):
If I lived in a country where the courts had not yet earned the citizens' respect, citing those courts would be more likely to lower my opinion of the citing court than to raise my opinion of the citee.
8.10.2005 3:50pm
cathyf:
Alternatively, citing the opinions of courts in countries that do enjoy the rule of law could just as likely be interpreted as pathetic sucking-up.

cathy :-)
8.10.2005 3:53pm
Scott Scheule (mail) (www):
The theory is so implausible -- at least to my ears -- that it leads me to think Breyer, et al, are really reaching to justify the practice.
8.10.2005 3:53pm
Guest (mail):
The ego! This reminds me of when I used to work for a for-profit academic publisher, and I would get calls from research assistants asking for free copies of our books, based on the argument that "it will help sell the book, because Professor So-and-so will cite it in one of the footnotes in his book." I would imagine poor deluded Prof. So-and-so, thinking that there will be thousands of readers out there poring over his work, with even his footnotes giving a boost to book sales.
8.10.2005 3:57pm
Cornellian:
If we were going to pay attention to the decisions of foreign courts at all, wouldn't we want to give priority to those courts that are most like ours, which is to say the courts of the English speaking, common law countries? I haven't noticed any rule of law problems in Britain, Canada or Australia lately. On Breyer's logic, doesn't this mean that the foreign decisions he cites are the decisions we should ignore?
8.10.2005 4:00pm
H.B.:
The loudest proponents of citing international precedents are snooty hypocrites who cite them only when convenient.

And justices who claim to value international precedents -- like Justice Ginsburg -- don't really give a hoot about what other judiciaries think.

They just cite international precedents when convenient to support their own preconceived notions, like permitting racial quotas.

Then they ignore ignore the international consensus when following it would require reforms of our lawsuit-happy, politically-correct legal system, or would protect against duplicative taxation or regulation.

California's unitary tax is a violation of international tax treaties, and it (along with similar predatory state taxes that tax activity outside a state's own borders), is probably the biggest legal irritant to Europeans of any American practice, way bigger than the death penalty.

Yet Ginsburg totally ignored an avalanche of protest from Europeans, and well-reasoned opinions of international bodies, in upholding the extraterritorial application of this tax.

Similarly, she ignores foreign precedents limiting punitive damages (she thinks there is no limit on state court punitive damages at all), class-action lawsuits, and unfounded litigation.

That's true even when the foreign decision construes precisely the same language as the Supreme Court is construing. (Ironically, Ginsburg and the liberals only look to European precedent where European provisions are differently worded or more explicit, as in the sodomy and affirmative action cases, and thus of little relevance to interpreting the American constitution, which was deliberately worded differently).

Ironically, only Justice Scalia cared what foreign judiciaries thought when it came time for the Supreme Court to construe the meaning of the Warsaw Convention regarding damages -- even though the foreign precedents at issue concerned the exact same text that the Supreme Court itself was interpreting.

Ginsburg and the liberals, who purportedly care about what international tribunals think, did not care at all. They all voted to adopt a construction of the Warsaw Convention exactly the opposite of all the international courts that addressed the issue (presumably because that would have limited litigation), even though those decisions involved precisely the same text, and thus were entitled to respect.
8.10.2005 4:04pm
BruceB (mail):
Did Judge Breyer explain where in the Constitution the Supreme Court is invested with the duty or authority to give "a little boost" to foreign judiciaries? I can't seem to find it in my copy.
8.10.2005 4:23pm
tbaughman:
The cherry-picking is what's so galling. There is no "shout-out" regarding decisions of foreign countries that are antithetical to what these justices are trying to accomplish.
8.10.2005 4:27pm
Jacob T. Levy (mail):
Yeah, that's a little weird. The best case for foreign citations surely depends on citing courts with established, entrenched, and successful constitutions. Otherwise the "persuasive" precedent is hardly very persuasive. If German, Canadian, or Australian courts have reached a particular conclusion about federalism, that at least might provide reason to stop and think about that conclusion. If Nigerian or Indonesian courts have done so, in their five or so years of continuous constitutional federal democracy and from their precarious position, it's pretty unclear what we should take that as evidence of.

Plus the ego thing...
8.10.2005 4:28pm
Anonymous:
H.B.: "Ginsburg and the liberals"??? The 6-2 majority opinion in that case, Olympic Airways v. Husain, 540 U.S. 644 (2004), was written by Justice Thomas and joined by Justices Rehnquist, Stevens, Kennedy, Souter, and Ginsburg. The dissent was written by Justice Scalia, with O'Connor. (Justice Breyer did not participate.)


It's true that Justice Thomas' and Justice Scalia's opinions argue back and forth about whether decisions by intermediate appellate courts of Britain and Australia are inconsistent with the reasoning of the Supreme Court majority, and if so, if the Court should have deferred to the reasoning of those foreign intermediate appeals courts. Scalia argues that they should have deferred, and of course his argument has merit. But it's totally ridiculous to describe Justice Thomas, in an opinion joined by Rehnquist and every other participating justice except O'Connor and Scalia, as "Ginsburg and the liberals."

8.10.2005 4:44pm
cfw (mail):
Seems like a poorly worded justification for a healthy practice - comparing US law to law in other countries.

We do it all the time within the states - NY looks at what CA is doing, etc. We do it withint he federal system to try to get a better result in the pending case, to craft more practical and lasting rules.

Seeing what is done in other places is not about "shouting out" or propping up the other judges. It is about learning from mistakes (or possible mistakes) made in other places and avoiding them. It is about learning from things done well elsewhere, as possible models.

Just as architects go to Rome and Florence to see what has worked there, Courts can and should cross borderes to glean ideas.

Courts should also look at what legal history has to offer, whether from England or elsewhere.

The US can afford to be less paraochial.
8.10.2005 4:48pm
NaG (mail):
If I were to put the Justice's point of view in the best light possible, it would be as follows:

"With or without the citation to the foreign court(s), the outcome of this case will be the same. So, we see no negative effect to throwing in a little 'shout-out' to other judges when the opportunity presents itself. It can't hurt, it only helps, so what's the big deal?"

My problem is that once you start using foreign decisions as precedent, even in an informal nonbinding context, you encourage other judges to take it a step further. It becomes a slippery slope.
8.10.2005 4:50pm
jurisprude:
If the reason behind citing foreign decisions is, in fact, to give a "shout out" to the courts of those countries (and I'm more inclined to agree with Scott that this is just a stretch), then I don't see a problem with it. In that case, the Court certainly can't be said to be relying on the reasoning of those courts, but merely remarking that other courts have addressed the same issue with similar results; I don't see how any harm is done by this practice. Given that opinions sometimes go off on tangents discussing issues entirely unrelated to law (my apologies that no specific examples spring to mind), BruceB, it shouldn't be troublesome that it's not one of the Supreme Court's duties to do so.

What concerns me most about this justification is that these justices, who are supposed to possess marvelous faculties of reason, may actually believe it. If the purpose of citing foreign decisions is to strengthen and instill public confidence in the judiciary in countries like Zimbabwe, it's probably a fool's task. I imagine that one could probably count on one or two hands the number of Zimbabweans who have more than a passing knowledge of the U.S. judicial system, and there are likely even fewer who read Supreme Court decisions on a regular basis. In short, I also agree with those who have made comments about the tremendous ego that these justices must possess.

And tbaughman, you misunderstand the very nature of a shout-out. The point is that you give props to people you share an affinity with, not with people you disagree with. Thus, when 2pac and the Notorious B.I.G. had beef, it would be quite unusual for Pac to extend recognition to Biggie; on the other hand, it would not be remarkable for Pac to have given a shout-out to Dr. Dre.
8.10.2005 5:00pm
anonymous coward:
After banning the citation of foreign court opinions, Congress should also consider outlawing the even more troubling practice of judicial "shout outs" to elite university professors.

While judges can (I suppose) consult any sources they deem helpful, I strongly object to the citation of law review articles in opinions--most of them probably attempts to suck up to liberal Ivy League faculty. Don't those Ivory Tower parasites have enough power already?
8.10.2005 5:12pm
LArry (mail) (www):

The loudest proponents of citing international precedents are snooty hypocrites who cite them only when convenient.



Guess what! Precedents (foreign or domestic) are only cited by justices when convenient! Do you really think that a justice will, on the Friday before an opinion is to be released, change his opinion because he receives an electronic copy of a decision from abroad that, if binding, requires a reversal of his opinion.

As to being a "snooty hypocrite" probably most people are.
8.10.2005 5:15pm
jrp (mail) (www):
Who, I wonder, appointed Justice Breyer Ambassador Extraordinary and Plenipotentary of the United States to the World Judiciary? Was there an appointment and debate in the Senate I missed?

Obviously not. The "shout-out" has absolutely nothing to do with the Constitutionally-granted power of judicial intepretation the Constitution. If he wants to 'give props to his peeps' in the International Judiciary, then let him do it on his own time.

The problem here is that, by him even bothing to read and adhere to international norms or some such tripe in an otherwise wholly domestic cases, he effectively usurps the Constitutionally granted powers of the US Courts, supreme and inferior, as reviewers of the law. He adds 'and the international courts' to the list without the power to do so.

If you are ruling on a conflict of a Constitutional Right or Power versus provisions of a Treaty, Maritime law or the like, then fine - referring to and citing the foreign law regarding the Treaty is fair game. But, I can't envision it's applicability anywhere else.
8.10.2005 5:18pm
Mark S.:
I have no trouble with the Supreme Court citing a foreign court's judgement anymore than I have problem with them citing famous foreign philosophers. I encourage all instances of logic and reason regardless of the source. Would you rather the justices read the foreign opinions and then have them falsely claim them as their own? What's more important, appearances or honesty?

I suspect this is important to some because it is far easier to spark debate about the parts of a decision than the sum of the ruling. Typical slight of hand trick.
8.10.2005 5:22pm
Scott Scheule (mail) (www):
Cfw raises an interesting and positive effect of citing, or at least, looking to international law, but from what I've read it's not the typical reason a Justice cites a foreign source. I don't believe I've ever seen a paragraph in an opinion to the effect: "Look, they tried this in Belgian Courts and all hell broke loose." Rather, the practice seems to be a shoring up of one's moral preferences by appealing to an international majority: "I think we should stop executing so and so, because Belgium doesn't execute so and so."
8.10.2005 5:25pm
William Spieler (mail) (www):
Scott:

Well, when talking about "cruel and unusual punishment", considering the text as following from natural law theory, which seems pretty close in its meaning to talk about "inherent rights of man", you can get to a point where Belgian discussion on the natural rights of man will be persuasive in an American court.
8.10.2005 5:30pm
Scott Scheule (mail) (www):
Mark,

It's not as if they're citing to foreign examples of logic and reason. Rather the typical example is a citation to some treaty Britain has signed or some statute Germany has passed, completely separated from whatever reasoning and logic, if any, led to their passage. Moreover, such it's hard to see how such logic would be relevant anyway--it is not the Court's obligation to make law, but rather, interpret it. Citing to a philosopher's theory of such and such may make sense, but citing to a foreign source of law as if the preferences of that law-making body had authority makes far less.

Surely there is something different between citing to a philosopher and citing to a judge -- a difference in kind.
8.10.2005 5:32pm
Scott Scheule (mail) (www):
William:

But I'm not speaking of Belgian discussion of the rights of man, I'm speaking of hypothetical Belgian law. You could make an argument that the latter is a proxy for the former, but that seems a stretch.
8.10.2005 5:34pm
William Spieler (mail) (www):
Scott:

At least of the usage of foreign citations that I'm aware of, I don't think it's that much of a stretch. As noted in an earlier comment, it's not like they're discussing tort liability caps, but rather something that seems to directly flow from natural law theory.
8.10.2005 5:38pm
Mark S.:
Scott:

I am certainly not knowledgeable enough of the specific instances of foreign court citations to defend whether such citations are reasoned, logical, or even appropriate to the case at hand. All I'm saying is that, as a rule, I have no opposition to the Supreme Court citing a foreign decision.

If you want to argue the specific instances of our Court citing a foreign opinion then I'll respectfully bow out as I have neither the foundation nor, honestly, the interest in such a conversation.
8.10.2005 5:47pm
Scott Scheule (mail) (www):
Will:

I obviously disagree, but I have nothing more to offer to that end.

Mark:

I, however, do object as a rule, because citation of foreign law is typically not an introduction of foreign theory, philosophy, logic, whatever, but rather, simply a bolstering of one's own preferences by appealing to foreigners who seem to share the same. I don't think even Scalia would object to citation of, say, Spinoza or Descartes -- though I may be wrong.
8.10.2005 5:55pm
Brian G (mail) (www):
Who is Breyer kinding? He just wants to snooty Euro-intellectuals to laud his brilliance. This is about him, nothing else. If Breyer and Ginsburg like citing foreign law so much, why not get a seat on the World Court?

Citing foreign law is bad enough. Citing treaties that we are not signatories to is even worse.

I can't wait for the day that the Court will rule an Amendment unconstitutional as violation of an international treaty. And it will come.

Also, I secretly hope that Robert Mugabe cites Kelo as justification for bulldozing whole towns.
8.10.2005 5:57pm
Doug Sundseth (mail):
cfw: "Just as architects go to Rome and Florence to see what has worked there, Courts can and should cross borderes to glean ideas. "

This is the job of the legislature, or the executive in cases where the legislature has left implementation details to the executive. It is not the proper role of the courts.

I would make an exception for the courts' internal rules of procedure, though I've not heard of such citations (IANAL).

I think it reasonable to follow a foreign line of argument and acknowledge the originator of that line of argument. But there is a difference between a footnote thanking the originator of an argument and using the preexistence of that argument as support for your own argument. Most cases of the latter are pure examples of the "Appeal to Authority" fallacy, since they arise from different wording and different (even if only subtly so) traditions.
8.10.2005 6:01pm
Helvidius (mail) (www):
Ridiculous and stupid. Where, please explain, in the Constitution does Justice Breyer get his authority to affect the foreign relations of the US? I'm pretty sure that's not part of "The Judicial Power." This is no longer bad constitutional interpretation, but utter dishonesty. Why doesn't he just admit he doesn't want to be bound by domestic democratic legislation?
8.10.2005 6:11pm
Duncan Frissell (mail):
I think right wingers haven't given enough thought to the benefits of citing foreign law. Here's some foreign law that conservative justices could use to justify their opinions.
8.10.2005 6:14pm
Bemac (mail):
The U.S. should be supporting the emergence of the rule of law in countries where it has not yet taken root. If Breyer wants to be part of that effort, he can resign from the court and seek a position with the State Department.
8.10.2005 6:15pm
Mark S.:
Scott --

"I, however, do object as a rule, because citation of foreign law is typically not an introduction of foreign theory, philosophy, logic, whatever, but rather, simply a bolstering of one's own preferences by appealing to foreigners who seem to share the same."

I fail to understand the substantive difference between quoting a foreign law/decision that appeals to a Justice's sentiments and quoting a domestic law/decision that appeals to the Justice's sentiments. Perhaps you think a court should only site to a case when it does not support their views and simply make up their justification?

Would you also argue against freedom of speech simply because some people use it in a way that displeases you? My point is your argument against the rule relies on the subjective application of it. In other words, your argument is transient -- your position that, "...citation of foreign law is typically not an introduction of foreign theory, philosophy, logic, whatever, but rather, simply a bolstering of one's own preferences by appealing to foreigners who seem to share the same," lends itself to reversal if only someone on the court did the exact opposite of your complaint. In other words, if only a Justice would cite to a foreign law/decision to introduce a theory, philosophy, logic, or whatever then such a citation would be acceptable with you. Since the court's makeup can change, this reversal is possible (it's even possible from Breyer and Stevens.)

So far you haven't made a compelling argument against the the use of foreign citations but rather a compelling argument as to how to properly use them.
8.10.2005 6:40pm
Scipio (mail) (www):
Well, this set of comments is a harsh indictment of my practice of citing in briefs to court opinions that I worked on in my stint at the MS Court of Appeals for specific points of law.
8.10.2005 6:45pm
Jeff Bergman (mail) (www):
Both Helvidius and Bemac have a strong point here: isn't Justice Breyer essentially proposing to conduct foreign policy from the bench? Whether or not one supports "the rule of law" overseas is besides the point, since managing foreign affairs is pretty explicitly the president's — and only the president's — constitutional responsibility. I'm surprised this "separation of powers" angle hasn't even occurred to Breyer.

In addition, we should remember that strengthening the rule of law around the world isn't even our sole policy goal. We also have an official commitment to promoting democracy and human rights, for example — a fact which unfortunately undermines Breyer's reasoning on its own terms, since it would logically prevent us from taking seriously the laws of any dictatorship. Yet the Court, for some mysterious reason, saw fit to cite Zimbabwean law when overturning juvenile executions not long ago. It's not at all clear to me why "Zimbabwe doesn't do it," isn't, if anything, a reason to actually permit the act in question.
8.10.2005 6:50pm
Mark S.:
Even if Breyer intends to influence foreign policy, that's all he can do: intend to influence it. When the Supreme Court enters into a substantive and overt treaty, policy, or agreement with a foreign power then I would say the separation of powers argument has some teeth. Otherwise, they aren't behaving in a way that in some way binds the United States to a foreign power.
8.10.2005 7:02pm
Eh Nonymous (mail) (www):
Goodness, such a lot of criticism for a sitting Supreme Court Justice, and for a practice which ("he promises") doesn't actually affect the _weight_ of anything he writes, just the outside effects.

Hm. So... he's claiming that if the United States, which despite what any liberal or conservative might have implied above, is _the most respected country in the world_ as far as having a legal system that protects rights under a written Constitution - after all, we were essentially there Firstest With the Mostest...

... chooses to cite (in its Supreme Court opinions, which are read throughout the world, and I do mean throughout)

... to the opinions of other courts, which are well-reasoned...

...then nothing bad will happen, and maybe some good.

I heard people call his claim hypocritical, disgusting, and unConstitutional. I'd like to know where those people get off. Words almost fail me - I nearly have to resort to obscenities. WHAT'S WRONG WITH YOU PEOPLE?

The claim is that No Harm Will Come from showing other courts that we pay attention to and think about their arguments in that their Persuasiveness Is Evident.

When a court comes up with a stupid, boneheaded, regressive, Bad, awful decision, nobody cites it approvingly. When a court does a good job, other courts take note. What about this is confusing to you (presumably common-law) lawyers and law students and others?

The growth of the Law, which I thought that some of you out there in the blawgosphere respected (even idolatrously) depends crucially on the willingness of courts to learn from their mistakes, to learn from others' mistakes, and to learn from others' insights. Otherwise we're back in Civil Law Land, where you have to change the Constitution to get anything fixed.

You people seem to have Scalia's idea of the Constitution, only applied to the Whole Law: it's best if it's considered graven in stone, as restrictive as possible, and Dead, Dead, DEAD. Well, count me out of that little "suicide pact" (Scalia, again).
8.10.2005 7:08pm
Steve:
Where in the Constitution does it say whether an unpublished opinion of the 10th Circuit may be cited as precedent? Oh no, it doesn't. I guess the world is going to end.

Foreign law is obviously not binding upon US courts, any more than a student note from the Michigan Law Review is binding. And yet, no one notices or cares when a court cites the student note. Should a court dare to mention how foreign countries are handling an issue, though, cry havoc and let slip the dogs of war, because they're clearly a bunch of latte-drinking liberal judges who want to make us a province of France.

In other words, the overreaction to this issue is preposterous. Justice Breyer was simply noting, in passing, one of the interesting side effects that might result from citing foreign law. He hardly said this was the only reason to cite foreign law, or that the Supreme Court is going to cite foreign law in order to become co-equal with the Presidency in terms of conducting foreign policy. Big deal.

To posit an opposing hypothetical, let's say Justice Scalia were to observe: "Strictly construing the Constitution according to the intentions of its drafters sends a valuable message to developing countries that ours is a government of laws, not of men, and that the words of a governing document should be taken seriously." Could anyone possibly have a problem with that? Could anyone think that Justice Scalia was improperly attempting to conduct foreign policy? It's absurd, and so are many of the comments on this post.
8.10.2005 7:18pm
Charles Iragui:
Common Law judges do "make law", not just interpret it. In the absence of a clear rule from precedent, turning to any source of reasoning, including foreign sources, would be appropriate to resolve the legal dillema.

Justices of the US Supreme Court surely are not to "make law" but simply to "say what the law is". This would seem to exclude use of foreign sources, as they would not make more clear what the Constitution or congressionally passed statutes say.

(Perhaps the aspirational "cruel" language would be an exception. What limit does the 8th Am place on the state if legislatures can interpret this language as they will?)

Breyer's comments sound like good intentions run amok.
8.10.2005 7:26pm
Anonymous Reader:
In a word, "WOW". I will be up front with everyone. I am not a lawyer and probably never will be. The citation of foreign laws or rulings seems to me to be an extremely slippery slope. It has already been brought up that the role of each branch of government is plainly written in the Constitution.

The judicial branch is there to rule on US laws. Not to look to the international community for "help" or "assistance"! "We the people of the United States..." hmmmm.... not of Zimbabwe or Madagascar are limited to the freedoms given to us under the US Constitution. It is a scary thought that a Supreme Court Justice would even waste time (they are an American court, and their rulings impact WE THE PEOPLE) to cite other opinions from international courts.

As a matter of personal knowledge and development as a scholar of jurisprudence, it might be a good idea for all lawyers to branch out and look at how other courts past, present, future, and internationally ruled in order to exercise their brains. But to use another country's laws or legal traditions (that WE THE PEOPLE have no control over) to base Supreme Court rulings is ridiculous. It's like we're taking the next step from judicial activism to judicial cherry picking. What's next? Corporate sponsors? A multi-million dollar record deal?

Again, personal research... good... on a court ruling that has the possibility of impacting WE THE PEOPLE... with no further recourse... bad. And by the way, there's a HUGE difference in citing domestic cases and foreign cases.... again... WE THE PEOPLE OF THE UNITED STATES!!

I rest my case! :-)
8.10.2005 7:36pm
William Spieler (mail) (www):
To continue an earlier theme, the Supreme Court citing foreign courts has just as much Constitutional authority as citing lower federal courts.

Nobody bitches when they do that, though.
8.10.2005 7:36pm
cfw (mail):

1) Assume the Hamdan case (Gtmo detainees not covered by the Geneva Convention, no rights to courts martial procedures to see if they are unlawful detainees) gets to the USSCT.

Easily relevant, in my view: law of war in England in 1787 and procedures in other countries under the Geneva convention. Also possibly relevant from a "Brandeis Brief" persective (sort of mixed fact and law): how do other countries in the GWOT and GSAVE deal with alleged unlawful combatants? What works (or does not work) for Israel? How about England? Spain? Italy? This must of course be done with due respect for the executive and legislative functions.

2) Assume Blackmun fully appreciated the furor that would erupt from Roe v. Wade. Could it have been helpful to look at the English law as it related to abortion in 1787 - the backdrop the framers worked against when they wrote the bill of rights? Perhaps. Could it have been relevant to look at privacy rights recognized in 1973 in England, France, Ireland, etc. as they relate to abortion?

If it is ok to see what the practices are in the 50 states, why not in foreign jurisdictions?

Nothing in the common law as it relates to charter or contract interpretation would preclude in my view a reference to English (and 13 colony) law in 1787.

If that analysis showed a personal privacy right in the 9th, 10th, 1st, 4th, 5th Amendments, melded together, I would not blow a gasket about reference to foreign (and 50 state)law to help delineate the 1973 boundaries of the privacy right.

3) Same goes for the right to bear arms. One might find in colonial and English law from 1787 a privacy right to bear arms (apart from the militia) that is confirmed (or not) by foreign law at present.

I am not saying this reference to foreign law is generally a persuasive approach, but it is not an appraoch I would say must be outlawed as "never judicial".

It is something that can be done, at times, without necessarily acting as a super-legislature.
8.10.2005 7:42pm
Anonymous Reader:
Mr Spieler,

How can that be? The lower federal courts serve the people of the United States. Their rulings are binding to us because they are given those powers under the US Constitution. Not to mention those lower courts are ruling on US LAW!! So to compare that situation with citing foreign law that has no basis in the US system of jurisprudence and is not given by THE PEOPLE is asinine. But I could be wrong. Someone please tell me or show me where the courts are given this authority, implicitly or explicitly.
8.10.2005 7:44pm
Mark S.:
Let's not get carried away. Speaking for myself only, I am not suggesting the Supreme Court should ignore the U.S. Constitution in favor of foreign law. I am simply saying that if foreign law happens to coincide with a Justice's view of the U.S. Constitution then there is no harm in citing to that law. This is in full recognition that I will not always agree with the Justice's reasoning.
8.10.2005 7:51pm
Anonymous Reader:
CFW,

The court system is not designed to make laws in no shape, form, or fashion. They are chartered to make decisions based on US law, whether that be from the states or federal courts. The people are given the power to elect representatives to make law, for good and for worse. It doesn't matter one bit, in my limited opinion, what Belgium thinks about litter or whatever. Belgium law is not legally binding on any US citizen here in the states for one, and secondly, the people did not elect Belgian representatives to make the laws that they make.

But maybe I'm missing something and need to be reeducated.
8.10.2005 7:58pm
Anonymous Reader:
I hear you Mark, but that's the slippery slope. Who's to say that a justice disagrees with a certain US law and then issues a ruling citing a foreign law that he agrees with? Is that something that we want to introduce in any form, limited or otherwise? That's why I fear that this "practice" is a slippery slope. Now instead of ruling ON the law, they are passing judgement on the laws made by the people based on foreign laws.
8.10.2005 8:03pm
Scott Scheule (mail) (www):
Mark:

I fail to understand the substantive difference between quoting a foreign law/decision that appeals to a Justice's sentiments and quoting a domestic law/decision that appeals to the Justice's sentiments. Perhaps you think a court should only site to a case when it does not support their views and simply make up their justification?

Domestic laws are enacted by our representatives. Foreign law is not. Is drawing a distinction between the two sources really that puzzling?

My point is your argument against the rule relies on the subjective application of it.

And my point was that there is a difference in kind between citing foreign philosophy and foreign law. We are arguing over definitions and not making any headway because of it. If you wish to include under the heading of "citing foreign law" all foreign philosophy, that's fine, but it is not -- I don't think -- what people typically are talking about when they use that heading.
8.10.2005 8:13pm
Steve:
The Constitution does not say in any way, shape or form that courts may only cite to US decisions. The idea that the Constitution charters the Supreme Court in very specific terms, and tells it exactly what it may and may not do, is a complete invention.

Let's talk about a common, everyday legal situation. If I practice in New York, and there is no New York decision addressing the matter at issue in a case, I may very well cite to similar cases from other states. And the court may very well say, "This is a case of first impression in New York, but courts in Florida, Texas, and New Mexico have all decided it the same way, and we find their reasoning persuasive so we adopt it." Now the courts of New York are there to interpret New York law, dammit, not the law of any other state, and I would wager that nowhere in the Constitution of the State of New York does it say one word about citing the judicial decisions of other states. But this happens every day and no one much cares. Nor does the world end because the Supreme Court decides to take into consideration how other Western democracies are handling an issue.
8.10.2005 8:13pm
Mark S.:
Perhaps I've taken too much for granted in the collective understanding of the Supreme Court. Can we all agree that the purpose of the Supreme Court is to judge U.S. law as a possible violation of the U.S. Constitution?

If we agree on that, then any ruling by the Supreme Court must have a foundation in the U.S. Constitution. Again, speaking only for myself, any court citing a foreign law/decision without a substantive foundation in the U.S. Constitution first, would be HIGHLY improper. The Supreme Court routinely cites to cases in order to clarify the ruling which is ALWAYS based on the U.S. Constitution. This is my basis for arguing in favor of courts reviewing foreign law. One more point of clarification. There would be very little value in a court examining the ACTUAL law of a foreign nation. There is potential value in a court examining the CASE LAW of a foreign nation. So when I say 'law' I am referring to case law.

Remember, if a court did cite to a foreign law/decision, it would only be as support to a finding in the U.S. Constitution or U.S. law, whichever would be appropriate to the level of court. I don't think anyone here is suggesting that foreign law should trump U.S. law or even apply to U.S. citizens. Such thinking clearly reflects a general ignorance of juris prudence in the United States.
8.10.2005 8:33pm
Anonymous Reader:
Touche... I freely admit that I am not as intelligent to the law as I probably should be, however, I approach this from the common man perspective and not from the legally trained perspective.

But I still strongly disagree in introducing any foreign case law, law or whatever in the decisions that are made by US courts. Steve's example is a good one. The state of New York is free to use the reasoning arguments or case law of any other state because those states are also limited by the same US Constitution. The laws of the individual states may vary to a degree, but isn't the "umbrella" of US juris prudence, US Federal law not state law?

In a purely academic sense, I have no problem with foreign law review. However, when a decision is handed down with reasoning based on how another country defines their laws, isn't that wrong? A ruling in X country is based on X country's law. Would the reverse be true? Are there any examples of other governments utilizing US case law as a basis or as reasoning for their court decisions?

The reason I feel strongly that foreign case law, laws, or whatever should not be cited in US court decisions because there is a give and take between the people and the judiciary. We are all bound by the same constraints/restraints of US law.

If I were to open up a hash house like I believe they have in Holland, could I be arrested for drug distribution? My defense could be, "well, they have them in Holland.... and this is how they deal with them.... etc, etc, etc..." Does that make sense?
8.10.2005 9:07pm
Harold365:
Why is it that this relatively benign issue has become such a lightning rod in the U.S.? Seriously. Supreme Court justices have read about foreign law?! Get out of here! I bet the next thing you'll be telling me is that they read books, too!

If it affects their views, or they find the reasoning persuasive, must they not cite it? Should they just plagiarize? Sheesh.
8.10.2005 9:16pm
Mark S.:
Steve's example fails because even a New York State case must have a foundation in the New York State Constitution. They can look to other states for support in their decision but, in the end, a decision in state court must have a foundation in that state's constitution. It can't say, "Law X is unconstitutional regardless of what the New York Constitution says. For support we look to Texas case law regardless of the fact that the Texas State Constitution is dramatically different than the New York Constitution." If a state supreme court did that it would put itself in violation of its own state constitution creating a Federal issue that would probably make its way to the Supreme Court of the United States.

If I were to open up a hash house like I believe they have in Holland, could I be arrested for drug distribution? My defense could be, "well, they have them in Holland.... and this is how they deal with them.... etc, etc, etc..." Does that make sense?

No, it doesn't make sense because NO COURT IN THE UNITED STATES WOULD ACCEPT AN ARGUMENT BASED ON FOREIGN LAW. The court may agree with you that laws forbidding the selling of hash are unconstitutional and use foreign cases that ruled similarly to illustrate their reasoning but, in the end, THEIR OPINION MUST HAVE SUPPORT WITHIN THE CONSTITUTION, whether it be a state constitution or the Constitution of the United States.

I agree with you that the moment a U.S. court, whether State or Federal, points to foreign case law as the jurisdiction for the case in front of it I will be right beside you in the revolutionary uprising. Until then, citing to foreign case law as support for a ruling founded in U.S. law (read: Constitution) is not subjecting U.S. citizens to that foreign case law.
8.10.2005 9:25pm
Harold365:
Hypothetical first case before the U.S. Supreme Court (I know this is not how it went down, but bear with me): Point at issue: Is some law a violation of the freedom of the press?

Justices look at each other, Justice A: "What does "freedom of the press" mean?"

Justice B: "I don't know, let's ask a founding father what he meant."

Founding Father: "Oh, it just means that you can't confiscate printing presses"

Another Founding Father: "Um, no, that's not what I meant. I meant you can never convict anyone for something they merely say."

Justice A: "Well that's inconvenient, they don't seem to agree. What should we do?"

Justice B: "Hmmm, I don't know. There is that country that has almost exactly the same provision in its constitution, and they've been interpreting it for 200 years, maybe we should read what they have to say."

Justice A: "Yes, that might be helpful."

Doesn't seem that crazy, does it?

So, the question is - if its ok for the first case to consider foreign law, why isn't it ok for the 3000th case? Empirically, after 200 years, there is probably little need to look to foreign judgments. But is there anything actually WRONG with it?
8.10.2005 9:30pm
Challenge:
"If I practice in New York, and there is no New York decision addressing the matter at issue in a case, I may very well cite to similar cases from other states"

Steve, you're confusing the common law with the interpretation of a statute--or super statute in the case of the Constitution. This is why, I presume, those who adopt a common law approach to constitutional interpretation are amenable to the citation of foreign law. Those who reject the common law approach to statutory or constitutional interpretation naturally reject the citation of foreign law. Still, there are good reason to reject foreign law as a basis of American law even if one accepts the common law approach to constitutional interpretation.
8.10.2005 9:41pm
Challenge:
"Until then, citing to foreign case law as support for a ruling founded in U.S. law (read: Constitution) is not subjecting U.S. citizens to that foreign case law."

Why must the Court seek "support" in foreign law if its decision is supposedly grounded in US law? This is a nonsensical argument. Why should the Court's opinion contain extraneous, useless, and irrelevant information? If its inclusion means nothing, then why include it?
8.10.2005 9:45pm
Anonymous Reader:
Again, on a purely academic tangent, researching the reasoning of foreign case law in helping to become a better lawyer/judge/etc is probably a good thing.... academically speaking that is. But I still have trouble using it in a US decision.

Now, I can agree with you, Mark S. that using it as a type of support for a US Constitutional ruling won't be the end of the world, but where would it stop? We can say that it is only another reference or that it provides some type of support for the constitutional ruling, but what is to stop someone from actually using it as a basis and then just throwing in a US law basis for top cover? That argument might not make much sense, but I feel that it goes to my slippery slope argument.

In a perfect world, it shouldn't/wouldn't be a problem, but we are humans and the Supreme Court is a powerful government entity run by humans who can make some pretty heinous "judgements". Just my 2 centavos.
8.10.2005 9:47pm
Harold365:
Challenge: If interpreting statutes is different from interpreting the common law, should stare decisis hold for questions of statutory interpretation? Or super-statutory interpretation? I say NO WAY! Statutes and Super-Statutes are entirely different! Judges should look at a statutory or constitutional provision and make their decision based on what their inner soul tells them. They should reject all other interpretations that have come before! Persuasive logic? That's for mere common law! This is SUPER STATUTE!!!
8.10.2005 9:51pm
Challenge:
Harold, stare decisis is a pragmatic principle which EVERY judicial philosophy incorporates. It is one thing to say a wrongly decided decision should stand because stability is important and quite another to CONTINUE the same error even further, the error or departure of the text and history and intent of the statute, which is the error of the common law approach to statutory interpretation. The common law is, of course, untethered to any statute, and is always in flux.

Also, I wonder what your sacred stare decisis would say on the question of, I don't know, citing foreign law in Supreme Court opinions.
8.10.2005 9:58pm
Mark S.:
Challenger --

You're right, it is nonsensical. I should have limited that particular line of argument to constitutions and not U.S. law. Got carried away, I suppose.
8.10.2005 10:23pm
Katherine:
It seems like the random "shout out" approach is both useless and harmless. It's not really showing engagement with the foreign cases at any level of depth, so what's the gain; but it's not really affecting the outcome and judges cite persuasive authority all the time, so what's the harm?

I would use foreign cases as evidence in discussions of how history has changed the application of a phrase of the Constitution, but since the Supreme Court just about never discusses history that way, it's not much help.

Studying it in school, which Scalia doesn't object to, actually has the potential to have much more of an effect. My theory of how to develop the U.S. Constitution owes a lot to my class on the South African Constitution. So if I were a judge (hah) it would have a huge effect on what I decided, but it's in an indirect way such that it would rarely if ever actually make sense to cite a South African case.
8.10.2005 10:41pm
cfw (mail):
Interesting comments. Regarding "no judge can or should make law": It is not as easy as it looks to be a judge, as Roberts recently noted.

Judges can and must make internal rules (in effect, laws) to avoid going crazy. Any judge who says he or she is a minamalist and has no preconceived rules or laws is a) a new judge or b) kidding. Judges in our society (any society) make rules and laws every day, all day long. That is how they decide cases.

The trouble with foreclosing USSCT use of secondary sources is the primary sources in hard cases are generally ambiguous, silent, or otherwise unhelpful. The USSCT takes and decides the hard cases. Almost nothing but hard cses. Close cases. Not your open and shut "just apply the law stupid" cases.

So, I agree the Justices have no business giving "shout outs", but looking at foreign law for inspiration - seems ok to me.

I also note that courts in England and elsewhere do cite and discuss US law. Not always with approval, and not as anything binding, but as helpful to keep in mind.
8.10.2005 11:10pm
Zach (mail):
Could we give a shout out to the second or tenth amendments once in a while? How about the Interstate Commerce Clause?

I know it seems like foreign law, but they've all been ratified and everything.
8.10.2005 11:31pm
Tom952 (mail):
So... how do we act to get our court back to the role defined in the Constitution?

What check(s) could be put in place in our democracy to confine court to judicial review and constitutional hair-splitting, and prevent all the other mischief, including lending a little "boost" to foreign courts from time to time as deemed necessary by Hizzoner?
8.10.2005 11:50pm
Daniel Chapman (mail):
As I've said before, could you imagine the outrage if Justice Scalia had written the majority in Lawrence and cited (in a completely nonbinding fashion of course) to canon law? That's exactly the same as justice Kennedy citing to the law of a european country that has already settled the issue of sodomy criminalization. Why not cite to Iranian law? It's merely cover for his own policy preferences.

"When the Supreme Court enters into a substantive and overt treaty, policy, or agreement with a foreign power then I would say the separation of powers argument has some teeth." - You mean like if they cited to a treaty that congress had explicitly considered and failed to enact, thus giving it the essential force of the law of the land as a Supreme Court precedent? They did that in Roper v. Simmons.

Harold: Even Justice Scalia agrees that citing to foreign law in a historical context in order to help in determining the original meaning of our constitution is acceptable. The problem is when justices cite to foreign law as an example of where US policy should go.
8.11.2005 10:12am
NaG (mail):
It is true that for the Supreme Court to cite to a lower court's ruling or to some law review article is about as weighty as when the Court cites to a foreign decision. However, the issue becomes then one of context. A lower U.S. court's ruling is still couched in American law with American precedent and jurisprudence to guide it. Same with the law review article. A foreign decision is not so grounded, and often is the product of law and/or institutions that do not exist in American law, and so do not translate well.

I found the debate between Justices Scalia and Breyer to be a good round-up of the arguments on both sides.
8.11.2005 10:27am
Paul Gowder (mail):
Although I'm in favor of citing foreign law, that argument for why strikes me as incredibly US-centric as well as optimistic, even imperialist. Why on earth does he believe that citing a country's law will have any effect on that country's relationship to the rule of law whatsoever? I can see it now, in Vladimir Putin's office

STOOGE: Sir! The troops are ready to roll on the Duma! Shall we crush the last pockets of opposition and institute a dictatorship!

PUTIN: Yes! I will rule the country for ever!

Enter Second Stooge

SECOND STOOGE: Mr. Putin! Mr. Putin! Wait! Justice Breyer cited our law in a United States Supreme Court opinion!

PUTIN: DAMN! Foiled again! Well, I suppose I'll have to put up with pitiful "democracy" and "rule of law" now.
8.11.2005 10:35am
Matt Barr (mail) (www):
This is a real non-starter. Well, it's not, since there are 60+ comments as I type this, but Justice Breyer is engaging in a little (probably unintentional) obfuscation of the real issue. If he wants to direct our attention to how they do things in a struggling developing country without relying on its law as precedent, there's nothing wrong with that. It's also not at all what gets everyone upset. What gets people upset is when the Court wants to determine, say, what the "evolving standards of decency" are in a "maturing society" and it uses as an example a European Court of Human Rights case, or a Supreme Court of France (whatever it's called) opinion, to do it. You're never going to point to a country just developing a credible rule of law as evidence of what all the cool countries are doing.

It's like defending the PATRIOT Act -- and you can agree or disagree with its defense or with reasonable objections to it -- by saying if we put more criminals behind bars by using the Act's powers we're better off. Well, sure, but that's not what gets opponents all spun up, and the person arguing that usually knows that.
8.11.2005 10:38am
Aultimer:
We have SCOTUS decisions that rely on concepts like "community standards" and "reasonable expectations" of the citizens. In the modern world (though maybe more in the Blue States of America) we have influental members of the population and multinational organizations who are under the influence of foreign courts through life experience and daily operations. Is it so hard to imagine that our standards and expectations are indirectly influenced by foreign law that we can't bear the thought of admitting it?
8.11.2005 11:54am
Daniel Chapman (mail):
See I have a problem with "community standards" rules too. For exactly that reason. "evolving standards of decency" and the like should exert their influence on the legislature, not the constitution.
8.11.2005 12:07pm
Challenge:
"Is it so hard to imagine that our standards and expectations are indirectly influenced by foreign law that we can't bear the thought of admitting it?"

This is nonsensical. If it is WE, the American people, which are "indirectly influenced" by foriegn law, then cite the change in American opinion, and NOT foreign law.
8.11.2005 12:25pm
mitch (mail):
I can't wait for a cite from an independent Iraqi judiciary that follows Sharia law
8.11.2005 1:40pm
Katherine:
Bowers cited to 2000 years of Western civilization, which presumably includes canon law.

I thin citation to foreign decisions in Lawrence would have been appropriate as a minor piece of supporting evidence that there is a growing factual consensus that homosexuality is immutable and therefore it is wrong to discriminate on that ground.
8.11.2005 2:43pm
Daniel Chapman (mail):
Bowers cited to "western tradition" in a historical context to explain our own constitution (specifically that its silence on the matter of sexuality as a protected class is not due to the fact that the issue didn't exist at the time the constitution and 14th amendment were drafted).

You are making policy arguments, not constitutional arguments. Explain that to the texas legislature.
8.11.2005 3:09pm
Challenge:
"I thin citation to foreign decisions in Lawrence would have been appropriate as a minor piece of supporting evidence that there is a growing factual consensus that homosexuality is immutable and therefore it is wrong to discriminate on that ground."

What does it matter if homosexuality is immutable or not? Plenty of bad people never change, yet the "immutability" of their depravity gives us no pause. Proponents of normalizing homosexuality (and I am one) misplace their reliance on asserting the immutable/genetic nature of homosexuality.
8.11.2005 3:34pm
Cynicus Prime (mail) (www):
It's judicial oligarchy. They're no better than academic headcases who cite each other's work to give themselves credibility.
While I don't see anything specifically unconstitutional in citing a foreign court ruling or other legal precedent, in the recent juvenile death penalty case, it became a truly dastardly practice. The ruling there cited a UN treaty that included a clause against juvenile death penalties that the US had not even signed! Our own courts defending their arguments with those specifically rejected by our legislators. An unthinkable breach of trust.
If the foreign citations were being used to merely give further examples of evidence found domestically, I would have no problem. But they are now being used to subvert the specific will of the legitimate lawmakers in our government.
8.11.2005 10:46pm
SimonD (mail):
I guess my question to those who favor foreign law is, why is it relevant? I mean, I can certainly understand how comparative law is interesting, but while the drag coefficient of an Iowa-class battleship, the seasonal batting average of the Chicago White Sox or the subtleties of the SQL SELECT statement are interesting, I don't see why they would be relevant to a case involving the Constitution of the United States, and I would therefore not expect to see a discussion of those things discussed in an opinion. Likewise, it is confusing to me why a law enacted in France - though it may be a very good law - should be revelant. Does it change the meaning of ERISA, somehow? Or perhaps the meaning of the due process clause is conditional on the evolving standards of decency of, say, Iranian society?

Unless you feel that it is the job of a judge to examine a case, determine what would be the best and fairest outcome, and then write a ruling which supports that view, if necessary bending (and if absolutely necessary, ignoring) the constitution and laws of thye United States of America, I don't see what you could possibly see as the value of citing foreign law. That isn't what I see the job of a judge as. I see the job of a judge as being to look to a given case, work out which laws, constitutional provisions and correctly-decided lines of precedent apply, and write an opinion applying those laws to the case. This should not be a controversial statement, but it evidently is.

So I guess I would like for the people who defend the use of foreign law to answer a slightly more basic question than others here have challenged. Don't tell us that it's a good idea, or that it might be of benefit to another country, explain to us what you think the job of a judge is, and what relevance foreign law might be to their task.
8.12.2005 12:24pm
Paul Gowder (mail):
Simon: the simple answer is that there are latent ambiguities in some of the terms in the constitution that require a sociological inquiry to determine their meaning ("cruel" and "unusual" are the most obvious) and it's non-obvious that this sociological inquiry should come from the united states polis, since the whole point of a constitution is to exempt some values from democratic debate and make reference to eternal, "natural law"-type values, and those values necessarily refer to all of humanity rather than one nation.

Of course, that answer assumes away certain flavors of originalism and assumes in a natural-law-ey sentiment, but, well, I really don't have the energy to debate those right now. If you want to see my position, see my comments here. The short version is that I think the framers intended to make reference to universal human values that could be developed over time in certain provisions of the constitution, so to satisfy the framers' intent, we must look to the values as they're out there in the world.
8.12.2005 11:09pm