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Foreign Courts Cite U.S. Supreme Court Less Often:
Adam Liptak has the scoop in the NYT. Over at Balkinization, Michael Stokes Paulsen responds: "It is nice to read -- finally! -- some good news in the New York Times."

  If the trend continues, we may see less U.S. Supreme Court citation of foreign law, as well: If we're citing them so they'll cite us, and they're not citing us, well heck, maybe we won't cite them. So there.
Cornellian (mail):
Maybe we need a trade agreement on the issue to avoid embarrassing citation deficits.

I'm kinda nuanced on this issue, neither applauding nor rejecting the idea of citing foreign law. I'm not a big fan of citing foreign law other than in a few particular circumstances where it's obviously appropriate but I'm less worked up about the issue when they're citing English, Canadian or Australian law than when they're citing cases from a civil law jurisdiction or, even worse, a civil law jurisdiction with a murky record of separation of powers and judicial independence. I don't think anyone in the U.S. really cares (or should care) if a U.S. court cites Hadley v. Baxendale for the 234,103rd time.

In the case of civil law jurisdictions, I doubt whether a case even has the same significance that it does in a common law system and I wonder whether U.S. courts really appreciate that when citing such cases.
9.18.2008 3:40pm
Smokey:
Mick Jagger once said that after traveling the world for three decades, the U.S. is an "A", and every other country is a "B". Very tactful.

Do we really want to lower our standards to the Euroweenie level, or worse?

Let the rest of the world aspire to us, instead.
9.18.2008 3:40pm
Rodger Lodger (mail):
This is a hoax issue. I'll bet my bippy that the U.S. judges who cite foreign law and the foreign justices who (formerly) cited U.S. decisions were all in the service of a liberal outcome. That's my hunch (i.e., not scholarly conclusion).
9.18.2008 3:43pm
AndrewK (mail):
Brian Leiter notes on his site that this indicates "waning" influence and is "obviously" due to the lack of ideological diversity on the Supreme Court. Leaving aside the non-obviousness of the diversity point, I'm not convinced this is due to WANING influence.

If the jurisprudence of the Court is moving towards LESS citation of foreign authority, oddly enough the decrease in foreign court citation of U.S. law could be explained as evidence of U.S. influence: i.e., we discount international norms, and so should you.
9.18.2008 3:51pm
Oren:

the foreign justices who (formerly) cited U.S. decisions were all in the service of a liberal outcome.

I doubt it. Strong 1A protections for speech are sorely needed in liberal jurisdictions these days.
9.18.2008 4:08pm
one of many:
my personal suspicion is that it is merely the maturing of common law constitutional judicial systems which is leading to this decline. When there is no large body of domestic precedent for a newly formed constitutional judiciary to refer to they must look to foreign (US) precedent for guidance (how often in the first 50 years of the US was English precedent used?) while once a domestic body of precedent has been built there is less need to rely on foreign sources. I could be wrong, but without an analysis of how often foreign judiciaries refer to foreign (to themselves and the US) relative to US precedent over time I cannot abandon my suspicion.
9.18.2008 4:14pm
Eric Muller (www):
Of the many, many things about the world today that I do not understand, the insistence on American legal isolationism from some on the right is high on the list.
9.18.2008 4:41pm
trad and anon:
Of the many, many things about the world today that I do not understand, the insistence on American legal isolationism from some on the right is high on the list.
For practical purposes, citation to foreign courts means citation to the courts of other liberal democracies. Nobody is advocating citation to the courts of, say, Iran. Compared to the rest of the liberal democratic world, the United States is a pretty conservative outlier, for good or ill. The Democrats would be a "right-wing" party in, e.g, French politics. Treating foreign courts as persuasive authority would therefore have a slight tendency to drag American law to the left. People on the American right are opposed to this, therefore they oppose citation to foreign courts.

I think citation to foreign courts makes the most sense when dealing with interpreting a treaty to which the U.S. is party, because we're talking about the exact same document. Conversely, it makes the least sense when interpreting the Constitution, which other liberal democracies generally have not used as a model.
9.18.2008 5:09pm
OrinKerr:
Eric Muller writes:
Of the many, many things about the world today that I do not understand, the insistence on American legal isolationism from some on the right is high on the list.
Eric, I tried to explain it in this post way back when.
9.18.2008 5:16pm
Bored Lawyer:

Of the many, many things about the world today that I do not understand, the insistence on American legal isolationism from some on the right is high on the list.


Not really hard to understand. The right wing views most jurisprudence as an act of interpretation -- what does a provision of the Constitution or a statute mean, i.e. what was its intended meaning at the time it was adopted as either a Constitutional provision or statutory law. The fact that a foreign court interprets a foreign law -- which is the product of a different polity, and in most cases a different time -- has little relevance to interpreting the American provision.

The left wing views jurisprudence as determining what is the just result -- reasoning a priori -- and often does not feel itself bound by the legal text at issue. In that context, what is "wise" or "just" in a foreign country ought to be similar to what is "wise" or "just" in the U.S.

A possible exception to the above is common law reasoning -- to the extent there is any of that left at the federal level in which the Supreme Court operates.

(The above is an oversimiplification, but I think broadly captures why the right wing is so resistant to citation of foreign law.)

It should also be noted that foreign courts often operate from a different legal tradition and different set of working assumption. To use one example (which springs to my mind as an intellectual property lawyer) -- most European countries base their copyright laws on a presumoption that the author has a natural, moral right to control the use of his work.

The U.S. Constitution does not recognize that theory -- instead it posits an incentive theory of IP law -- to incent creativity, Congress can grant limited monopolies to creative works -- i.e. patents and copyrights.

When the Supreme Court considered a retroactive extension of copyright terms in Eldred v. Ashcroft, it cited foreign copyright terms to justify Congress's extension. The problem is that the Patent and Copyright Clause is based on a different theory than the foreign decisions cited.
9.18.2008 5:16pm
Bored Lawyer:

I think citation to foreign courts makes the most sense when dealing with interpreting a treaty to which the U.S. is party, because we're talking about the exact same document.


Yes, that is another good exception. In fact, a treaty is the product of two or more sovereignties -- so it is fair to rely on foreign decisions interpreting it.
9.18.2008 5:17pm
stanneus :
On the assumption that courts generally prefer to cite recent rather than older rulings, there is a simple reason why foreign courts have been citing US Supreme Court rulings less frequently: there have been fewer recent decisions to cite. The Supremes have been deciding about half as many cases as they did 20 - 30 years ago.
9.18.2008 6:12pm
Cornellian (mail):
Compared to the rest of the liberal democratic world, the United States is a pretty conservative outlier, for good or ill.

On social issues that is true. The other liberal democracies tend to be far more deferential to government intrusions on individual liberties. Traditionally that would have been considered more conservative. It's only less conservative under the Bush/Cheney notion of "conservative."
9.18.2008 6:20pm
5L (mail):
If you read the comments on the NYT site for that article, which can be summed up as "I HATE BUSH LDSLFJLSDK!!", you'll understand why this article was printed.

The liberal argument here is that in order for us to be more influential, we should let foreign courts influence us more. This would only make sense to a liberal.
9.18.2008 6:40pm
A.S.:
The article states: "The new courts are, moreover, generally more liberal than the Rehnquist and Roberts courts and for that reason more inclined to cite one another."

However, there are only two pieces of data cited by the article. The first is that the Canadian supreme court cited the US Supreme Court twice as often during 1990-2002 as it has during 2003-2008. The second is that Australian state supreme courts cited American decisions 208 times in 1995 but only 72 times in 2005.

But how can this be an effect of the Rehnquist/Roberts courts? Rehnquist was Chief Justice in 1990 (when the study of Canada began) and in 1995 (when the study of Australia began).
9.18.2008 6:48pm
Oren:
Cornellian is on the right track. Our amendments 1,2,4,5,6,9,14 (or, so J. Aldridge doesn't hiss at me, the current illegitimate interpretations of same) are considerably more rigid and pro-individual than anything found in the rest of the world. To say that America is more conservative (presumably based on religious/social issues) than the rest of the world is to miss this fundamental difference.
9.18.2008 7:31pm
Soronel Haetir (mail):
Hand in hand with the fairly inflexible US stance on personal freedom we also have the same in terms of criminal responsibility. They are simply two marks on the same side of a single coin.
9.18.2008 7:47pm
Katl L (mail):
Compared to the rest of the liberal democratic world, the United States is a pretty conservative outlier, for good or ill.

Abortion law is far more liberal in the USA, Karlsruhe rejected the american aproach.
In the crucifix case Karlsruhe allowed the cross to remain in the classroom but without the Cristh. Baviera government is still in fault to comply.

Venezuelan Supreme court does not cite the law but almost every bit of constitutional law is american inspired. Thet al,most never cite venezuelan authir s onlu spaniarda.The spanish in turn are heavily under american law influence.
Some laws like the Apa spanish equivalent has articles identical to apa
9.18.2008 9:33pm
David M. Nieporent (www):
Compared to the rest of the liberal democratic world, the United States is a pretty conservative outlier, for good or ill.

On social issues that is true.
Not entirely. The U.S. abortion regime is much more liberal than much of the rest of the world. And of course few other countries have the rigid separation of church and state we do.
9.18.2008 11:30pm
Jerry F:
"Not entirely. The U.S. abortion regime is much more liberal than much of the rest of the world. And of course few other countries have the rigid separation of church and state we do."

The views of the average American on abortion and religion are probably far to the right of the views of the average European. The difference is that most European countries do not have an oligarchic left-wing activist Supreme Court to dictate social policies.
9.19.2008 1:07am
New York:
To Cornellian: "a civil law jurisdiction with a murky record of separation of powers and judicial independence."

What civil law jurisdiction are you speaking of in particular? Do you mean those civil law jurisdictions where Parliament entertained stripping courts of jurisdiction for political reasons?

This is part of the problem with the foreign law debate: statements like the one made above are completely hollow. In fact, read a German Juristische Methodenlehre (e.g. Zippelius, Introduction to German Legal Method, Carolina). He treats the very important issue of courts not overstepping their bounds when interpreting laws precisely on separation of powers grounds.
9.19.2008 1:33am
Seeking Clarification (mail):
I admit that I am confused by this particular aspect of American jurisprudence. So I have a few questions.

How is exceptionalism itself a justification for ignoring foreign jurisprudence? Why would the opinion of a handful of Supreme Court Justices in the United States — past and present — trump the opinion of the most brilliant legal minds amongst 5-6 billion outside the United States?

More precisely, if Eugene Volokh (or other conspirators) had not found himself in the United States, but as a member of the British House of Lords, would his insights regarding the second amendment be any less cogent?

Regarding the criticism of foreign jurisprudence that "you can find support for almost any position", does this not also apply to academic writings?

Finally, is there any situation where you would concede that American courts should at least acknowledge the opinion of other democracies?

Once again, I admit that I don't fully understand this debate, so feel free to point out that I am beginning from an incorrect set of premises.
9.19.2008 5:17am
Public_Defender (mail):
I'm mostly with Cornellian. So what if they cite foreign courts from time to time? The Court frequently cites law professors, and I don't see why a professor at Harvard is automatically more authoritative than the British Law Lords.

Of course, any given citation might be inappropriate, but that's the case for any citation. I see no reason for the allergic reaction some conservatives have for any mention of a foreign court.
9.19.2008 7:16am
rosignol (mail):
How is exceptionalism itself a justification for ignoring foreign jurisprudence?


The justification for ignoring foreign jurisprudence is simple- if the dispute is between US citizens in a US jurisdiction, the relevant law should have been written by people who won elections in the US.

There is no constituency in the US for having our laws written by people we can't kick out of office by means short of invading another country.


Why would the opinion of a handful of Supreme Court Justices in the United States — past and present — trump the opinion of the most brilliant legal minds amongst 5-6 billion outside the United States?


Because those brilliant legal minds were not elected by voters in the US, or appointed to a position in the US government by anyone who won an election in the US. They do not derive their legitimacy or authority from the consent of American voters.
9.19.2008 11:33am
deepthought:
The debate over foreign citations by SOCTUS is really bogus. The Court has always cited foreign sources since the very beginning.

In The Supreme Court, the Law of Nations, and Citations of Foreign Law: The Lessons of History, Prof. Daniel Faber at Boalt Hall has written (quoting from the abstract):

. . . foreign law has deeply permeated our legal system from the very beginning. [It} make[s] it difficult to attack the practice as a suspect modern innovation or to make a plausible claim that disastrous results will surely follow. It is also difficult to argue that references to foreign sources violates the mandate of the framing generation, when members of that generation assumed that such reference would be made and indeed referred to transnational legal principles in the Constitution itself.


And Profs. Steven G. Calabresi and Stephanie Dotson Zimdahl of Northwestern have written a massive survey of SC foreign citations between 1798-2005, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision where they state:
. . . . none of the participants in this debate has yet stopped to closely examine just what exactly the practice of the Supreme Court has actually been over the past two hundred-plus years of its history in regards to citing foreign sources of law. . . . . those who say the Court has never before cited or relied upon foreign sources of law are clearly and demonstrably wrong. In fact, the Court has relied on such sources to some extent throughout its history.


Whether it's a good idea or not is another question (both articles address that question), but to say its a recent phenomena and unique to certain Justices is just not true.
9.19.2008 8:31pm
Soronel Haetir (mail):
The question I would ask however is /which/ foreign courts were cited and in what contexts. It would greatly bolster the argument that we should now look to what mainland Europe is doing if SCOTUS did so in those early years.

And I'm referring to something like a French decision from And I'm referring to a French or Spanish legal opinion from say 1770 to 1800 that is strictly dealing with domestic French or Spanish law. I would be absolutely amazed if such a citation could be found in the early SCOTUS record.

Citations to English courts of that time and even somewhat later are relevant because of the shared but diverging legal history from that period.
9.20.2008 1:55am
BABH (mail):
I too call BS on the faux outrage. It is a basic principle of intellectual honesty to give a citation for an argument that is not originally your own. If a judge or clerk uses a persuasive argument they found in a book, article, or judicial decision written by an American or by a foreigner, they should give a cite.

Oren Kerr tries to put the shoe on the other foot: "what if conservative justices were to cite the Bible in support of their arguments?" Well, they're welcome to try (and in fact just by writing in English we find ourselves quoting the Bible almost constantly). Still, I would challenge anyone to find a sound argument for public policy in revealed scripture. "God said so" may be compelling, but it is not an argument.
9.20.2008 10:37am
deepthought:
Soronel Haetir 9.20.2008 12:55am:

While I don't want to deprive you of the pleasure of reading the articles I linked to (they can be downloaded from SSRN), practices of Japanese law, English law, Roman law, French admrialty and commercial law, and European court rulings interpreting the "laws of nations" have been cited by the Supreme Court in its civil and criminal case rulings throughout its history. Further, Justices have cited social statistics from Europe and the United Nations (see Trop v. Dulles (356 U.S. 86 (1958), whether forfeiture of citizenship as punishment for a court martial conviction for wartime desertion was constitutional) in support of their opinions (see also Lochner v. New York, J. Harlan, dissenting at 71-72. Harlan used data on the placed New York State's attempt to limit bakers' hours in an international empirical perspective (see Calabresi &Zimdahl, p. 77.)

Also, it is not just the Court that cites foreign law. Parties to SC litigation, icluding the Government, cite foreign laws or policies to support their position (see Calabresi &Zimdahl, p. 87-88, discussing the Selected Draft Law Cases
(1918).) In that case, the Government noted in its brief the practices of 37 different countries. (see footnote 416 of Calabresi &Zimdahl.)

I really recommend the Calabresi &Zimdahl article. I think it provides the boardest discussion of this topic, while at the same time identifying those areas where foreign law citation may be inappropriate.
9.20.2008 4:05pm
David M. Nieporent (www):
Oren Kerr tries to put the shoe on the other foot: "what if conservative justices were to cite the Bible in support of their arguments?" Well, they're welcome to try (and in fact just by writing in English we find ourselves quoting the Bible almost constantly). Still, I would challenge anyone to find a sound argument for public policy in revealed scripture. "God said so" may be compelling, but it is not an argument.
Your response helps prove the point: the Court is not supposed to making arguments for public policy. The Court is supposed to make legal decisions, not policy decisions.
9.20.2008 5:58pm
BABH:
Quite right, I'm sorry. What I should have written was:
"sound basis for a legal decision."

Also, I mis-spelled Orin.

My point stands.
9.20.2008 8:04pm