pageok
pageok
pageok
A Danger of Using Foreign Law to Interpret US Law:

The use of foreign law to interpret the US Constitution is a complex subject that too often gets caught up in sound bites. Although at this point, the Supreme Court's use of foreign law in this way has been extremely limited, I have several concerns about proposals to increase that reliance. In this post, I'll just briefly mention one that hasn't gotten enough attention: the Court's lack of relevant expertise.

For a Supreme Court made up of generalists, even keeping up with all the US law that the Court has to deal with is a full-time job, one that the justices often fail at. But at least a justice addressing an issue of American law that he is unfamiliar with has the advantage of dealing with a body of law embedded in a broader legal system that he has at least some understanding of. By contrast, few if any justices have extensive knowledge of foreign legal systems. As a result, justices interpreting foreign law are likely to misunderstand the context of that law, and also to misunderstand relevant differences and similarities between the US and the foreign jurisdiction in question. Thus, even if it is theoretically possible for the Court to mine valuable insights from foreign law, it is unlikely that the real-world Court will actually be able to do so. This lack of expertise may help explain why those justices who do rely on foreign law never seem to do a systematic survey of the relevant foreign precedents, but instead simply pick a few examples that seem to support their position. To take an example from an area of law I'm familiar with, Justice Stephen Breyer sometimes relies on foreign law to justify his positions on federalism issues, as in his famous dissent in Printz v. United States. However, he has never confronted the fact that many federal systems in other democracies (e.g. - Germany) have fairly extensive judicial review of federalism issues, with judges using their power to limit the authority of the central government. Breyer, of course, has taken the position that the US judiciary should virtually never restrict federal government power on federalism grounds. Similarly justices such as Breyer and others who endorse the Court's abortion precedents routinely ignore the fact that most other nations impose more extensive constraints on abortion than would be permitted under US Supreme Court precedent.

These two examples are drawn from the work of liberal justices. However, I doubt that the conservative justices would be much better if they too started to rely on foreign law to buttress their positions in constitutional cases.

John C:

For a Supreme Court made up of generalists, even keeping up with all the US law that the Court has to deal with is a full-time job, one that the justices often fail at. But at least a justice addressing an issue of American law that he is unfamiliar with has the advantage of dealing with a body of law embedded in a broader legal system that he has at least some understanding of. By contrast, few if any justices have extensive knowledge of foreign legal systems.


This is probably the most compelling critique I've heard yet of using foreign precedent; the fact that Justices might be cherry picking law they know little about is troubling.

Ultimately, though, it doesn't address some of the comments that have been made on this board over the last few days - if we were to "ban" (or otherwise stigmatize) citing to foreign precedent, couldn't a Justice simply use the foreign reasoning and omit the cite? In some sense, if they are going to do it anyway, isn't it better that they cite it, so we can see what they are thinking and counter-argue if necessary?
11.18.2007 3:50pm
Ilya Somin:
Ultimately, though, it doesn't address some of the comments that have been made on this board over the last few days - if we were to "ban" (or otherwise stigmatize) citing to foreign precedent, couldn't a Justice simply use the foreign reasoning and omit the cite? In some sense, if they are going to do it anyway, isn't it better that they cite it, so we can see what they are thinking and counter-argue if necessary?

I'm not advocating a formal legal rule (statutory or constitutional) banning judges from citing foreign law. I agree that such a rule would be easy to evade. Rather, I hope to persuade people that doing this is a bad practice. The more people are persuaded of this, the less likely judges will be to do it (and also the less likely that people willing to do it will be appointed and confirmed).
11.18.2007 3:57pm
Zathras (mail):
I'm not sure how compelling this argument is. Aren't these concerns mentioned here exactly the reason for amicus briefs?

A more novel approach: when a federal court has to address a novel question of state law, one possibility is to certify the legal question to the state supreme court. Perhaps by treaty a similar process could be created for the US Supreme Court to certify questions to the highest courts of other countries.
11.18.2007 4:17pm
martinned (mail) (www):
L.S.,

Certifying to foreign courts will never work, since they are busy enough with their own cases. (Don't even get me started on the ECHR's backlog.) Still, one important point is the possibility of amici addressing foreign law, thus informing the court. I recall this has been done in at least one GITMO case, where an amicus brief was written discussing Israeli practices in dealing with alleged terrorists.

What's more, I don't really think the main body of the issue is very problematic. Outside references to pre-1776 english law, foreign law is never controlling. Instead, its persuasive power rests on the underlying argument, in which case any party is welcome to propose counterarguments, or the persuasive power rests on the simple fact that the US should indeed care what the consensus is among civilised nations. In the first case, cherry picking isn't really a problem, and in the latter, the level of knowledge involved is very low, since the argument concerns the average of, say, the EU, Australia and New Zealand.
11.18.2007 4:35pm
sbron:
I believe Justice Ginsburg cited foreign law in siding with the University of Michigan for racial preferences.

The California legislature once tried to overturn proposition 209, by citing some sort of UN resolution that also supports racial preferences.

Does anyone else find the above troubling?
11.18.2007 4:59pm
Chico's Bail Bonds (mail):
I've always thought the same thing with law-and-economics law review articles. Hardly any judge has enough training to go above an economics 101 level, which presents a grossly distorted model of how people actually behave in the real world. Nevertheless, you see judges using to interpret everything from the Sherman Act to the Due Process clause.
11.18.2007 4:59pm
TerrencePhilip:
The cherry-picking nature of it is what's problematic. After all, it's unlikely Breyer will cite to British or other European decisions the next time an issue reaches the court involving libel law and the First Amendment. Judge Posner has a good essay on the subject here. How many judges and lawyers can even read decisions from Poland, Germany, France or Italy; and of those who can, how many know enough about their politics, selection of judges, and extent of judicial power, to argue with any authority that the opinions of courts of these nations should have any bearing on American consideration of such issues as "federalism" or abortion or the death penalty?
11.18.2007 5:19pm
Ben P (mail):

I believe Justice Ginsburg cited foreign law in siding with the University of Michigan for racial preferences.


Not quite foreign law.

In her concurrence in Grutter, she cited a UN Convention to which the US is a party.

It's the very beginning of her concurrence, but it also seems to not really be controlling in her opinion.

In whole
he Court's observation that race-conscious programs “must have a logical end point,” ante, at 2346, accords with the international understanding of the office of affirmative action. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, see State Dept., Treaties in Force 422-423 (June 1996), endorses “special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.” Annex to G.A. Res. 2106, 20 U.N. GAOR, 20th Sess., Res. Supp. (No. 14), p. 47, U.N. Doc. A/6014, Art. 2(2) (1965). But such measures, the Convention instructs, “shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.” Ibid.; see also Art. 1(4) (similarly providing for temporally limited affirmative action); Convention on the Elimination of All Forms of Discrimination against Women, Annex to G.A. Res. 34/180, 34 U.N. GAOR, 34th Sess., Res. Supp. (No. 46), p. 194, U.N. Doc. A/34/46, Art. 4(1) (1979) (authorizing “temporary special measures aimed at accelerating de facto equality” that “shall be discontinued when the objectives of equality of opportunity and treatment have been achieved”).
11.18.2007 5:21pm
Kovarsky (mail):
you've got to be careful to parse what it is that foreign law is being cited for. if i'm citing foreign law for a descriptive purpose (e.g., even iran has outlawed the execution of mentally retarded offenders), it's a little different than if i'm citing to it as, for example, a source of authority or content for a federal rule.

also, ilya, i don't find the idea that the supreme court doesn't have context when it cites to foreign law all that compelling. in the cruel and unusual punishment context, for example, the court has to scrutinize state law in order to satisfy doctrinal elements of the 8th amendment test. i doubt the supreme court is much more familiar with the "context" of montana law than it is with the content of, say, english law on certain subjects.

i don't really understand why this is different, for that mattter, from courts citing the literature in a more esoteric academic field. sure, they don't understand the field itself, and you run the risk of cherry-picking, but is the foreign law context really that remarkable in that respect?
11.18.2007 5:39pm
GV_:
Judges have to interpret foreign law all the time outside of the constitutional context. Do you object to courts doing that as well?

Hell, according to Originalists, judges (who mostly have zero training in history) are supposed to figure out difficult questions of history. So how about this: if conservative judges will stop pretending to be historians, liberal judges will stop citing foreign law to confirm a conclusion they would reach anyway. Deal?
11.18.2007 5:39pm
Kovarsky (mail):
Judges have to interpret foreign law all the time outside of the constitutional context. Do you object to courts doing that as well?

for example, any suit to enforce an arbitration award that was awarded under another country's substantive law.

just to clarify - i'm not a fan of invoking foreign law. it's just something i'm fairly ambivalent about. but i can't help but believe that this is an interpretive argument that is just a proxy for lawrence-type decisions that rest on ambiguous standards like "fairness," "norms of decency," etc. i guess you can argue that, where a doctrine incorporates terms like that, foreign law should be completely irrelevant, but that's also not an overwhelming argument.

(i mean, is it really not noteworthy that we were one of three countries in the world that still executed juveniles when roper was decided?)
11.18.2007 5:54pm
frankcross (mail):
It's an interesting point. But it depends on (a) the justices lacking the expertise to evaluate foreign law and (b) the justices failing to appreciate that they lack this expertise.

This is plausible and would call for a decision rule against its use. However, it does open up interesting issues. In addition to law and economics, one might question use of originalism. The justices are not trained historians and there are certainly critiques of their interpretive originalism.
11.18.2007 5:56pm
Benjamin Davis (mail):
This argument however begs the question. It has already been noted that amici are available to flesh out points of interest in foreign law. The real issue is why generalist Supreme Court justices in the American system are so ignorant of foreign law and international law. I would go farther and say why are their best and brightest clerks just as ignorant? The reason is that we do not train people in this in law schools. We train them at best in the U.S. foreign relations law approach.

Justices and students can learn how to do systematic research in different cultures (we can go back to Paquete Habana to see an effort in 1900 to really look around the world for a customary international law rule).

Got to go.

Best,
Ben


I worked 14 years in international commercial arbitration and I will assure you that the understanding of that area was enormously helped by what I have learned in public international law
11.18.2007 6:28pm
David M. Nieporent (www):
The problem isn't merely that judges may not understand the context of foreign law, but that foreign law -- other than pre-revolutionary England -- doesn't have anything to say on the subject of our constitution. The question is what the U.S. constitution means -- not what the French one does.

(i mean, is it really not noteworthy that we were one of three countries in the world that still executed juveniles when roper was decided?)
No, it isn't. And presumably you mean that on paper, other countries don't do this. And of course the U.S. did not "execute juveniles"; you mean execute 30 year olds for things they did when they were 17.

And, as Scalia has pointed out, what they/you are really doing is picking the instances that support their position. No liberal who cites the lack of juvenile executions in other countries as an excuse to ban what he already decided he doesn't like would cite the lack of the exclusionary rule in any other country as a reason to overrule, e.g., Miranda or Mapp.
11.18.2007 6:49pm
Don Hamrick` (mail):
OUT OF THE FRYING PAN AND INTO THE FIRE: I have a human rights complaint against the United States at the Inter-American Commission on Human Rights (IACHR), Petition No. 1142-06, (still pending) for the Second Amendment as a human right.

There is a "No Constitutional Right to Police Protection" case that preceeds my case at the IACHR to which the IACHR has accepted that case for the Inter-American Court of Human Rights in Costa Rica (possibility exists for the trial to be held in the United States). The case is Jessica Gonzales v. United States, Petition No. 1490-05. This case opens the door for a Second Amendment as an international human rights case, such as my case. The "Next Step" is the step I have already taken, a Second Amendment as a human rights case to the IACHR.
11.18.2007 7:09pm
New Pseudonym (mail):
I have no background, but it seems to me that this subject is not amenable to any blanket rule. For example:

When the law merchant or admiralty law is at issue, it seems that judicial decisions of other nations interpreting such law can be highly persuasive.

When a treaty or equivalent is at issue, they can be highly persuasive as well. Perhaps decisions of the proper court can even be controlling (Although I am not sure that the "highest law of the land" issue has entiely been put to bed). And of course, the text of a treaty to which the United States is properly a party (and perhaps agreements entered into pursuant to the treaty) can be controlling.

Choice of law is another area where I can see a role for the law of other nations.

Both threads have previously alluded to the English Common Law (as it existed at some appropriate date, perhaps?) IIRC one southern State has a statute that declares the Common Law as of a particular date is the law of that
State, and the date is odd, but logical (I don't think it was either July 4, 1776 or the date the state ratified the Constitution but memory fails here).

Customary international law is an area that is iffy. Not because it's use is not legitimate, but because of the difficulty in determining what it is. I would hold that any "customary" international law to which the United States has not already agreed is not customary international law, making its usage trivial.

I could probably think of others where use of foreign law is appropriate.

On the other hand, the use of the law of other nations to show an emerging consensus or equivalent is entirely illegitimate. This is particularly abhorrent when as a prior poster has stated the consensus of civilised [sic] nations is what counts. Per that poster, Turkey's law suddenly became relevant very recently when it joined the EU [it did finally get admitted, right?]. Common Law jurisdictions aside, why should France or Germany's opinion count more than Myanamar or North Korea?

My bottom line is that as long as one side of this argument discussion is proposing a general rule on the use of foreign law, and the other side comes up with examples of its use that are not very controversial, the discussion is not as productive as it might be. (Insert Smiley here to show that I'm not being critical)
11.18.2007 7:09pm
Frater Plotter:
Common Law jurisdictions aside, why should France or Germany's opinion count more than Myanamar or North Korea?
Probably because France and Germany have reasonably credible commitments to the rule of law, whereas Burma and North Korea do not.
11.18.2007 7:20pm
martinned (mail) (www):
L.S.,

@New Pseudonym: Well yes, because "civilised nations" are civilised exactly because they aspire to the highest standards for liberty, rule of law and democracy, just like the US does. These three are to some extent contradictory, hence the different outcomes in different countries, but a consensus among civilised nations should definately be persuasive. (And never more than that!)
11.18.2007 7:28pm
Attila (Pillage Idiot) (mail) (www):

but instead simply pick a few examples that seem to support their position

The same critique can be made of the use of domestic law, but it's still valid. Judge Leventhal is supposed to have said that citing legislative history is like looking out over a crowd and picking out your friends. I think the same thing would apply here, only with more arrogance involved.
11.18.2007 7:31pm
Russ (mail):
Probably because France and Germany have reasonably credible commitments to the rule of law, whereas Burma and North Korea do not.

Um, was this committment before or after killing 6 million Jews, or spraying down a crowd at the airport in the Ivory Coast.

Maybe de Gaulle made his committment after he tore up the French Constitution......yet again.

Perhaps the Germans made this committment when they deny birth parents of foreign born citizens the right of custody b/c taking the children out of the foster home they've lived in would be "too disruptive."

US Judges should rely only on US law, period. Judges who try to use foreign citations should be impeached and removed from office.

If I wanted to live under foreign law, I'd go live in a foreign country.
11.18.2007 7:52pm
Kovarsky (mail):
david,

And, as Scalia has pointed out, what they/you are really doing is picking the instances that support their position. No liberal who cites the lack of juvenile executions in other countries as an excuse to ban what he already decided he doesn't like would cite the lack of the exclusionary rule in any other country as a reason to overrule, e.g., Miranda or Mapp.

actually, what you are really doing is failing to appreciate the distinction between what the cruel and unusual punishment test requires you to look at and what the 4th amendment test requires you to look at.
11.18.2007 8:02pm
frankcross (mail):
It's not obvious to me that the practices of other nations are irrelevant constitutionally to the definition of cruel and unusual punishment. Wouldn't surprise me to learn that the Founders sought interpretive guidance from some European nations deemed the "civilized" world, much as they apparently adopted English common law precedents. Indeed, isn't our entire common law the "fruit of the poisonous tree" of early reliance on English law, under a proscriptive theory?

The exclusionary rule, by contrast, is an enforcement of the Constitution, not an interpretation of a potential violation. At least I'm unaware of claims that the exclusionary rule violates some constitutional prohibition. Which is not to say that foreign law or experience would be irrelevant but that it is not a remotely comparable analysis.
11.18.2007 8:07pm
Mack (mail):
I personally await with glee the day they uphold capital punishment by cherry picking Chinese, Indian, African, or South American law (a majority of the world), rather than cherry picking out of the latest EU social justice nonsense.

Of course, it is never going to happen. Nor should it.
11.18.2007 8:35pm
frankcross (mail):
I think a literal majority of the world's countries, including nearly all of South America, has prohibited the use of the death penalty.
11.18.2007 8:51pm
Cornellian (mail):
Is there any Western country at all, other than the United States, which still imposes the death penalty?

How many countries of any description still impose the death penalty for crimes committed by juveniles? So far as I'm aware (not that I've checked recently) it's the United States plus a small handful of authoritarian dictatorships.
11.18.2007 9:29pm
Russ (mail):
64 nations still have the death penalty; 90 have abolished it. So it's about a 1/3:2/3 split.

frankcross - most South American nations still have it, like Brazil, Argentina, Chile, Peru, and Bolivia.

Personally, I don't care a whit for whether another nation abolishes it or not. A lot of these same "civilized" nations also refuse to recognize the right of self defense. Try defending your self in Great Britain or Australia in any way that results in harm to your attacker and see how stiff the penalty to you gets.

This is about OUR laws, not the laws of another nation. If you feel that we should change to the way they do busniess, then I suggest that you lobby your representative and convince enough people to change it. That's how things are supposed to be done in a republic, rather than by judicial fiat.

America's rule of law makes it great; America's rule of lawyers does not.
11.18.2007 9:51pm
REPEAL 16-17 (mail):
If using present day European law is legitimate when interpreting the Constitution, then the SCOTUS would have to overrule Gregg v. Georgia (1976), which ruled the Death Penalty to be Constitutional and Roe v. Wade (1973), which recognized a woman's right to an Abortion. If the Court is to be consistent it's double or nothing, because neither the Death Penalty or Abortion On Demand exists in Europe.
11.18.2007 9:52pm
Evelyn M. Blaine (mail):
REPEAL 16-17:
If using present day European law is legitimate when interpreting the Constitution, then the SCOTUS would have to overrule Gregg v. Georgia (1976), which ruled the Death Penalty to be Constitutional and Roe v. Wade (1973), which recognized a woman's right to an Abortion. If the Court is to be consistent it's double or nothing, because neither the Death Penalty or Abortion On Demand exists in Europe.
No one has ever claimed that contemporary foreign law is controlling. Some of us just aren't committed to the dogmatic position that it's always irrelevant.
11.18.2007 10:01pm
REPEAL 16-17:
No one has ever claimed that contemporary foreign law is controlling. Some of us just aren't committed to the dogmatic position that it's always irrelevant.


If citing European law is irrelevant to a decision, then it should be not be in any opinion (majority, concurring, dissenting, etc.) of the Supreme Court. A SCOTUS opinion is for why a Justice, or group of Justices, is voting a certain way in a case. Either the citing some foreign law is relevant to that Justice's vote, and so should be in that Justice's opinion, or it's not relevant and so it shouldn't.
11.18.2007 10:08pm
Russ (mail):
No one has ever claimed that contemporary foreign law is controlling. Some of us just aren't committed to the dogmatic position that it's always irrelevant.

Okay, which foreign law is relevant? Great Britain? Germany? Mexico? Japan? Zimbabwe? Israel? Saudi Arabia?

Or is it only the laws you agree with?

There are a lot of US laws I don't like. However, I recognize that they, and their interpretations, have been essentially agreed to by the elected representatives of this nation. The interpretations of foreign laws have no bearing here, nor should they.

Impeach and remove a couple of judges for this garbage, and I'd bet the practice will stop pretty quick.
11.18.2007 10:13pm
frankcross (mail):
Russ, by my research, Argentina and Bolivia have abolished it, and the other nations you mention reserve it for treason or like acts. I'm not sure any SA nations have the death penalty for ordinary murder.

I will say, the USSC use of foreign law seems somewhat bizarre. It is not used as controlling, merely persuasive makeweight. Yet its use seems to have the opposite effect -- being unpersuasive. Perhaps they just dipped their toe into the water and they may have found it unpleasantly cold.
11.18.2007 10:35pm
Kovarsky (mail):
Personally, I don't care a whit for whether another nation abolishes it or not. A lot of these same "civilized" nations also refuse to recognize the right of self defense. Try defending your self in Great Britain or Australia in any way that results in harm to your attacker and see how stiff the penalty to you gets.

Russ, you're missing the point. It's nice that you don't care. The problem is that the eighth amendment case law prescribes a method of inquiry that requires judges to look at foreign law. Nobody's arguing that South Africa's interpretation of the Commerce Power is binding on U.S. courts. If you would disregard a doctrinal directive to look at foreign law, that would seem to make you the cherry-picker, the activist, or any of the other silly names that are used to berate "liberals" (whatever that term means) these days.
11.18.2007 11:06pm
pireader (mail):
Professor Somin wrote -- Justice Stephen Breyer sometimes relies on foreign law to justify his positions on federalism issues, as in his famous dissent in Printz v. United States.

After reading over this comment thread, and Jon Adler's earlier thread on a similar topic, I'm perplexed about the specific evil you're opposing.

For example, what do you find objectionable about Justice Breyer's reference to foreign practice in Printz?

Justice Scalia's majority opinion, and Breyer's dissent from it, both agree that the consitutional text is silent on Printz's federalism issue. To resolve it, Scalia offers rather abstract theoretical reasoning about how a particular approach to the issue "would" turn out badly. Breyer disagrees, noting that several federal democracies who take that approach don't, in fact, experience those consequences.

Whether or not you agree with Breyer's overall conclusion, please explain what's illegitimate about his adducing foreign experience as evidence for the particular point he's making?
11.18.2007 11:09pm
Lev:

The problem is that the eighth amendment case law prescribes a method of inquiry that requires judges to look at foreign law.


It does? Where?
11.18.2007 11:29pm
Russ (mail):
Russ, you're missing the point. It's nice that you don't care. The problem is that the eighth amendment case law prescribes a method of inquiry that requires judges to look at foreign law.

Enlighten me on how it is required. "Cruel and unusual" doesn't mean "as compared to what other nation do." It means "in accordance with accepted standards within the United States."
11.18.2007 11:58pm
Russ (mail):
frankcross,

I'll go back and check again, but my research from earlier tonight is that those two nations do indeed have the death penalty. And what they have it for was not the question - it is that they have it.

My beef with this is that we are talking about US law, and no other law should have say so in any part of it. Again, if I wanted to live under foreign law, I'd live in a foreign land. If we choose to abolish the death penalty, then that's fine, but it should be a considered judgment of the elected representatives of our republic, not imposed by judical decree by unelected judges relying on foreign law.
11.19.2007 12:01am
Can't find a good name:
New Pseudonym: ''IIRC one southern State has a statute that declares the Common Law as of a particular date is the law of that State, and the date is odd, but logical.''

Probably Arkansas Code sec. 1-2-119: "The common law of England, so far as it is applicable and of a general nature, and all statutes of the British Parliament in aid of or to supply the defects of the common law made prior to March 24, 1606, which are applicable to our own form of government, of a general nature and not local to that kingdom, and not inconsistent with the Constitution and laws of the United States or the Constitution and laws of this state, shall be the rule of decision in this state unless altered or repealed by the General Assembly of this state."

I'm not sure what the significance of March 24, 1606 is, though.
11.19.2007 12:05am
Mack (mail):
Majority of countries, but not majority of people represented by countries.

Tadah!
11.19.2007 1:16am
Kovarsky (mail):
Enlighten me on how it is required. "Cruel and unusual" doesn't mean "as compared to what other nation do." It means "in accordance with accepted standards within the United States."

no.
11.19.2007 1:48am
Billy Idle:
Isn't punishment that is "in accordance with accepted standards" the opposite of "cruel and unusual"? How did the SC square that circle, Russ?
11.19.2007 5:47am
frankcross (mail):
There's a little circularity here. Of course, we are governed by US law, not foreign law. But the US law, in its wisdom, may delegate authority to foreign bodies. For example, the WTO involves judicial decrees by unelected judges applying international law, and we accept those decisions as potentially overriding US legislation.

However, I feel confident in saying that the US will not delegate fundamental principles of constitutional interpretation to foreign judges. It will be at best a makeweight argument.
11.19.2007 10:26am
Kovarsky (mail):
frank,

there's a difference between "delegating authority" to foreign judges and invoking the content of foreign law via domestic authority.

also,

the WTO involves judicial decrees by unelected judges applying international law, and we accept those decisions as potentially overriding US legislation.

I'm not sure what you mean here, unless you're referring to charming betsy. Or, if you're referring to Medellin, you're not really describing the dynamic properly. It's not U.S. legislation that's "overruled."
11.19.2007 10:36am
jfalk:

Either the citing some foreign law is relevant to that Justice's vote, and so should be in that Justice's opinion, or it's not relevant and so it shouldn't.


If you want to the decision to reflect the process a justice actually used, and if the justice was influenced by international precendent as he saw it (no matter how ill-informed about that precedent) aren't you better off if he (or she) tells you about the fact that it weighed into the decision than if he (or she) didn't? After all, there is no decision that has been written in the history of the supreme court that couldn't have been written without mentioning foreign law and not a single vote would have been different. If someone is arguing that a judge should never be influenced by something he (or she) happens to know that just seems unrealistic. I'd rather know what they based their opinion on than not know, whether I agree with it or not. If nothing else, it ought to help when arguing with them the next time, or even help with the same issue if it arises again and international precedent changes for some reason. But without any mention of it, you'd never know. Written opinions (weakly) bind the author and co-signers. That's a good thing.
11.19.2007 10:51am
Mark Field (mail):
CA Civil Code Sec. 22.2 provides that "The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this state."

This Section, by the way, was adopted in 1872. This suggests to me that the opposition to citation of foreign law is of recent origin.
11.19.2007 11:30am
martinned (mail) (www):
L.S.,

To some extent, the common law (as opposed to constitutional law) is thought of as being common to all common law jurisdictions. That is why the most important common law precedent of all, Donoghue v. Stevenson, is the basis for all cases in negligence in all common law jurisdictions except the US, even though it is itself Scottish. I'm afraid though, that this is somewhat of a separate issue, since this is a matter of finding out what the common law is, rather than one of interpreting the constitution of the United States.
11.19.2007 11:48am
David M (mail) (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 11/19/2007 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
11.19.2007 12:19pm
Cornellian (mail):
English common law probably ought to be regarded as a unique exception since it really wasn't foreign law at the time. It was the law (and legal system) that was already being applied and realistically a state would have to adopt it as a starting point so they wouldn't have a legal vaccuum. For this and other reasons I have no problem with citing to English common law decisions, generally speaking. I wouldn't even object all that much to citing the decisions of other common law, English speaking countries like Canada, Australia or New Zealand since their legal systems and legal history are sufficiently similar to ours to give one a certain comfort level about the context of the decision. It's citing to the courts of Nigeria or Russia or Argentina that I find highly problematic.
11.19.2007 1:17pm
Christopher Taylor (mail) (www):
I would suggest that trying to draw a parallel between a justice learning the philosophy and history of their own nation and learning the legal philosophy and laws of every single nation on earth is a bit disingenuous.

One can, and I'd argue must be done for someone to achieve the highest court position in the land. The other is an absurdity no human being could achieve in ten lifetimes.
11.19.2007 2:40pm
Cornellian (mail):
I believe the old English case of Hadley v Baxendale still gets studied in US law schools today and it's not the only such case.
11.19.2007 4:11pm
Ilya Somin:
This argument however begs the question. It has already been noted that amici are available to flesh out points of interest in foreign law. The real issue is why generalist Supreme Court justices in the American system are so ignorant of foreign law and international law. I would go farther and say why are their best and brightest clerks just as ignorant? The reason is that we do not train people in this in law schools. We train them at best in the U.S. foreign relations law approach.

I am very skeptical that any of this can be accompanied in a 3 year law school curriculum that already gives people no more than a rudimentary knowledge of most areas of US law. Studying foreign law in a systematic way would involve learning not only the reasoning of their decisions, but also a great deal about the structure of their cultures and political systems, so that the students (and judges) could understand what the legal opinions mean in context.
11.19.2007 4:18pm
GregC (mail):

For example, the WTO involves judicial decrees by unelected judges applying international law, and we accept those decisions as potentially overriding US legislation.


Frank Cross is wrong about this. The WTO does involve judicial decrees by unelected judges, but we do not accept those decisions as potentially overriding US legislation. A WTO decision may only conclude that a particular nation's rules (statutes or regulations) are inconsistent with certain trade treaties (e.g. GATT, TBT, SPS, etc.). And a WTO decision may authorize an aggrieved nation to inflict retaliatory countervailing duties on the nation in violation. But a WTO decision can not override the legislation or regulation of any member nation. That's why many of the US, EU, etc., rules determined by the WTO to be GATT-illegal are still in place. The WTO has zero impact on a nation's sovereignty. It can only authorize other nations to engage in practices (i.e. to take retaliatory measures) that they would have a sovereign right to engage in even in the absence of the WTO.
11.19.2007 4:35pm
Elliot123 (mail):
I suspect this issue is just part of a larger backlash against the notion that foriegn ideas and prctices are superior to American ideas and practices. How many times are we told by one commentator or another that our actions have incurred the displeasure of the "international community," lack the support of the intenational community, or are contrary to the what the international community wants the US to do?

In many quarters it seems the goal is gaining the approval of the international community, and the interests of the US should come second to the approval of the international community.

Perhaps I'm not sophisticated or nuanced enough. But I really don't know who or what the international community is. I know what France is. I know what the EU is. I even know what China, Brazil, and India are. But I fail to see how those nations form any semblance of community. Just where does one look to find the single view of the international community.
11.19.2007 10:21pm
martinned (mail) (www):
L.S.,

@Elliot123: Ah, yes, US exceptionalism. The ultimate reason why it does not behove the US to care what anyone else thinks.

Oh, and by the way, how exactly is your problem with the concept of "the international community" any different from any other community? I know who I am, I know who my neighbour is, but I'm a little hazy on how we're meant to somehow be a community.
11.20.2007 4:25am
JohnThompson (mail):
Ginsburg and Breyer should have been executed a long time ago. next question?
11.20.2007 6:01pm