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Ginsburg on Citing Foreign Legal Decisions:

The New York Times has an account of a speech by Justice Ginsburg defending the practice of citing foreign legal decisions:

Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.

"Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" she asked.

Well, that depends. If, for example, the issue is interpreting a clause of the U.S. Constitution, and the law review article is about the text and history of the U.S. Constitution, and the "judge from abroad" is writing about the E.U. Constitution, or international norms, or moral theory, then there is very good reason one would "look to the wisdom" of the American professor, and not to that of the foreign judge.

She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, is "probably cited more widely abroad than the U.S. Supreme Court." There is one reason for that, she said: "You will not be listened to if you don't listen to others."

Really, who cares? Justice Ginsburg's job is to get American law right, not to influence the rest of the world's law. And, anyway, it strikes me that the Canadian Constitution, as interpreted by its Supreme Court, is much more in line with the more collectivist ideologies of other nations than is the U.S. Constitution. Consider how Canada allows free speech to be balanced against purported societal interests in such a way that, for example, allows bans on purported "hate speech." The U.S. should be proud that our law stands alone in this regard, not lamenting that it prevents us from getting cited abroad.

She also offered a theory about why after World War II nations around the world started to create constitutional courts with the power to strike down legislation as the United States Supreme Court has.

"What happened in Europe was the Holocaust," she said, "and people came to see that popularly elected representatives could not always be trusted to preserve the system's most basic values."

Well, that's just bizarre. The Holocaust was carried out by a Nazi dictatorship that hadn't been elected since 1932. And if Weimar Germany had established a constitutional court, it's highly unlikely that it would have meaningfully stood in the way of the Nazis. But I'm willing to reconsider if someone can point me to academic literature showing that the establishment of constitutional courts was a response to the Holocaust.

And note the irony that there is one national "constitutional court" that did stand in the way of rising tide of fascism and fascist-inspired policies in the 1930s, and that's the U.S. Supreme Court. The Court invalidated various New Deal policies, in particular the National Industrial Recovery Act (unanimously), that threatened to concentrate far too much unreviewable power in the hands of the President (in the case of the NIRA, the power to set wages and prices across a broad swath of the American economy). If Ginsburg has ever said a kind word about the Supreme Court of the early New Deal period, however, I'd be very surprised. She certainly consistently votes against any attempt to revive even minimal limits on the federal government's power.

In her remarks, Justice Ginsburg discussed a decision by the Israeli Supreme Court concerning the use of torture to obtain information from people suspected of terrorism.

"The police think that a suspect they have apprehended knows where and when a bomb is going to go off," she said, describing the question presented in the case. "Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: 'Torture? Never.'"

The message of the decision, Justice Ginsburg said, was "that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity." Then she asked, "Now why should I not read that opinion and be affected by its tremendous persuasive value?"

I don't know that Ginsburg is accurately describing Israel's law, which as I understand it allows the use of "moderate physical pressure" in exigent circumtances. (Also, an aside, the Israeli Supreme Court is a rather dubious institution. It has arrogated to itself the power to determine the constitutionality of various very important government policies, including with regard to questions of national security, despite the fact that Israel has no constitution. That Barak, a leading advocate of this constitutional coup, is so widely admired by American liberal constitutionalists likely says something significant, and to me not very positive, about their view of the proper role of the judiciary.)

Regardless, there is very good reason that Justice Ginsburg shouldn't be affected by Justice Barak's opinion, as described by Ginsburg, and that's its reliance on moral judgment rather than law [not the fact that Barak is a judge from a foreign country. As a commenter points out, if the issue is the interpretation of an international treaty against torture, foreign precedents are obviously potentially persuasive. But Ginsburg cited Barak not for his interpretation of a treaty, but for his moral judgment]. It's not Justice Ginsburg's job to decide whether allowing the use of torture is a lesser evil, or whether it should be banned because it means "we come to look like that enemy in our disregard for human dignity." Such determinations are for the elected branches to make in establishing the law, and Justice Ginsburg's job is to apply the law they have made, not to make up rules that comport with the values she has adopted after thinking very hard about the learned decisions of judges in other countries. Justice Ginsburg is free to be personally persuaded on the moral issue by Justice Barak, but this should have no effect on her vote on any case involving the legality of torture.

By the way, readers interested in why, in historical context, it's important to limit the influence of foreign law on American constitutional interpretation should read, among other things, one of my favorite books, Ken Kersch's Constructing Civil Liberties, with a focus on the final chapter. In short, the "turn to international law" is the latest in a series of attempts by the Progressive left, some more successful than others, to separate American constitutional law from the unique values that animate the U.S. system of government.

Comments will be open for four hours.

UPDATE: I opened comments, but they are not working. Sorry.

UPDATE 2: Comments are working now. I'll leave them open for a little while.

UPDATE 3: Comments are now closed.

Mike& (mail):
Excellent post.
4.13.2009 11:03am
Z (mail):
Disagree. I would set the blog to ignore Prof. Bernsteins posts if I could do so; I've yet to find one with substantial analysis instead of conclusory jingoistic clap trap.
4.13.2009 11:11am
Redman:
The lady should retire.
4.13.2009 11:13am
loki13 (mail):
DB,

Hoping this comment works. I saw J. Ginsburg give an earlier version of this speech in person, although perhaps less refined as it was in a long answer to a combative question. I believe you are looking for an argument when, at its core, there is none. J. Ginsburg has a problem with others (usually conservative commentators) who harp endlessly about 'that furriner law' without really understanding the issue. She simply is trying to point out that there are many sources of persuasive legal reasoning out there- and that we should no more look askance at the use of a Law Review, or a state supreme court reasoning (about their state constitution) as we should a foreign court. Many times they confront similar issues, and while *no one* should find their reasoning binding, it can be as persuasive as any other source, and sometimes moreso.

(None of this applies to the cruel and unusual jurisprudence. I don't want to go into that minefield.)
4.13.2009 11:16am
SP:
It's the "I like it and happen to agree with it" school of law. I happen to think that, if a foreign case happens to present similar facts and the reason behind the decision is especially lucid, we can shamelessly crib it. But that would be in an area like antitrust law, where there is some attempt at technical analysis.

Torture is inherently a moral question. Ginsberg is saying she is comfortable with certain people dying as a result of her decision. That's a question of what makes her comfortable sleeping at night, not what the Israeli Court has said. So, on a difficult question, she chooses to punt.
4.13.2009 11:16am
David M. Nieporent (www):
Disagree. I would set the blog to ignore Prof. Bernsteins posts if I could do so; I've yet to find one with substantial analysis instead of conclusory jingoistic clap trap.
Not only is that unsubstantive, uncivil, and pointless -- if you don't like his posts, why do you read them? -- but it's not even right; you can set it so that his posts don't appear to you.

Heck, one regular commenter here even used the command as his username just to forestall comments such as yours.
4.13.2009 11:19am
Strict:

"Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" she asked.

Well, that depends. If, for example, the issue is interpreting a clause of the U.S. Constitution, and the law review article is about the text and history of the U.S. Constitution, and the "judge from abroad" is writing about the E.U. Constitution, or international norms, or moral theory, then there is very good reason one would "look to the wisdom" of the American professor, and not to that of the foreign judge.


Professor, I think she was talking about when the American professor and the foreign judge are addressing the SAME ISSUE/TOPIC.

If we're interested in the Judiciary Act of 1789, of course we'd look to the wisdom of an American professor's article about the Act instead of a bankruptcy opinion from the District Court for the Japanese Prefecture of Wakayama.

Your strawman is ridiculous.
4.13.2009 11:19am
RowerinVa (mail):
David, this post is a tour de force.

The mis-citation of the Israeli court is priceless. Israel has essentially done what the Bush and, apparently, also now the Obama administrations have done. Namely, state loudly "Torture? Never," then proceed to define various types of physical "pressure" as not torture. Thus, various highly uncomfortable positions and deprivations are legal in Israel (and apparently fairly common), and waterboarding was legal in the US (although apparently extremely rare), though a very significant number of observers, rightly or wrongly, would describe these as torture. It's unclear what and how frequently the Obama administration will use physical pressure, but when it does it won't call it torture even if nine of ten lay people on the street would use that term.

Justice Ginsburg is showing a disturbing tendency to accept claims at face value when they suit her, and casting a skeptical eye over only those claims that it suits her biases to attack. That's normal and human but not very judicial.
4.13.2009 11:25am
DangerMouse:
Ginsberg's entire attitude towards being a judge is entirely inconsistent with democratic values. We are plebes to her. She is the ruler. If she doesn't like a law, then it's just too bad for the masses. Oh, she'll be sure to check in with the snobs in foreign countries. After all, we wouldn't actually want to listen to - GASP - Americans, would we? No, but foreign snobs have just the right amount of disdain and contempt for America, while living off of its power and prosperity.

I don't know why people think that she's a good judge. She's a horrible judge.

Impeach her.
4.13.2009 11:26am
Tugh (mail):
I completely agree with Strict. Clearly, Ginsburg is talking about the situations where a foreign judge writes about the same or a similar problem. Contrary to what Professor Bernstein may think, it is not always irrelevant how other cultures approach similar issues. It is not as if the US is in a vacuum and it can never learn anything from foreigners.
In addition, and very relatedly, Professor Bernestein, you are wrong about the Israeli Supreme Court approving the moderate physical pressure. While it may have been allowed in the past, the Supreme Court, in a well known decision, found that such treatment is either torture or quickly becomes torture. Why is this decision not relevant when one ponders the legality of certain interrogation techniques used by the US? I submit that it is only not relevant one one disagrees with the decision reached by the Israeli Supreme Court.
4.13.2009 11:27am
Tugh (mail):
Professor Bernstein, sorry for misspelling your name in the previous post!
4.13.2009 11:29am
David M. Nieporent (www):
Loki, Ginsberg is at best responding to the talk-radio version of the complaint, while ignoring the substantive complaint. Yes, there are circumstances -- interpretation of treaties, international commerce -- where it's appropriate for a court to look to foreign court decisions for their persuasive effect, just as courts do with law reviews. Only knee jerk ignorant callers on talk radio deny that.

But interpreting (e.g.) the first or second or fourteenth amendments? No. A foreign court interpreting a foreign constitution has nothing to add to an analysis of what the U.S. constitution means. Persuasive or otherwise. The question is not what the judge wants the provision to mean, but what the provision actually does mean. A law review article about the first amendment might be persuasive. A state court which analyzes the actual first amendment might be persuasive. But a foreign court interpreting a foreign free speech guarantee? No.
4.13.2009 11:31am
corneille1640 (mail):
A quibble:

Well, that depends. If, for example, the issue is interpreting a clause of the U.S. Constitution, and the law review article is about the text and history of the U.S. Constitution, and the "judge from abroad" is writing about the E.U. Constitution, or international norms, or moral theory, then there is very good reason one would "look to the wisdom" of the American professor, and not to that of the foreign judge.

It might depend even further. Can't reasonable people disagree on the meaning or application of certain clauses of the constitution that other countries' construction might shed light on? I'm thinking of items like the injunction against bills of attainder, cruel and unusual punishment, what counts as a case or controversy, and others. Not being a lawyer, I rest ignorant about whether other countries offer any substantive help on these issues. But it might conceivably be helpful to consult others' views.

Mr. Bernstein does raise some important points. But I think I agree with one of the commentators above who suggests that Ginsburg's argument is most effective against the unreflective railing against "foreign law undermining our sovereignty." (For the record, I do not claim Mr. Bernstein does this, but anecdotally, I have known others who have without fully considering the reasoning by which foreign law might be justifiably relied on, at least in some circumstance.)
4.13.2009 11:32am
ruuffles (mail) (www):

Torture is inherently a moral question.

Really? I could have sworn the eighth amendment was still live and kicking.

So, on a difficult question

Not really that difficult if you follow the 8th, rather than watching 24, a la Scalia.
4.13.2009 11:34am
Tugh (mail):
Anyone interested in what the Israeli Supreme Court had to say about so called "moderate physical pressure" techniques can do read the decision here:

4.13.2009 11:36am
David M. Nieporent (www):
I completely agree with Strict. Clearly, Ginsburg is talking about the situations where a foreign judge writes about the same or a similar problem.
See, there's a problem with that already. Courts do not address "problems." They address cases. More precisely, the Supreme Court, with rare exceptions, addresses the interpretation of specific federal laws and the U.S. Constitution, as these laws apply to specific cases. Why would foreign judges face "the same or a similar problem" when they're not operating under the same statutory or constitutional framework?
Contrary to what Professor Bernstein may think, it is not always irrelevant how other cultures approach similar issues. It is not as if the US is in a vacuum and it can never learn anything from foreigners.
The U.S. can learn many things from foreigners. But what the U.S. Constitution means is not one of those things.
4.13.2009 11:37am
frankcross (mail):
One can certainly criticize given uses of foreign opinions.

But when a state court cites a precedent from another state, does that bother you?

And if you don't trust the justices to use foreign law, why would you trust them for not using foreign law. I hardly see how the reference to foreign law would turn a good judge bad.
4.13.2009 11:38am
Tugh (mail):
Sorry, I don't know why the link didn't get posted. Either my posting skills deteriorated significantly or links do not work for some reason.
4.13.2009 11:39am
RowerinVa (mail):
Strict:

With respect, I think it's Justice Ginsburg who's using the strawman here. I don't see an appreciable number of commenters (and particularly not David Bernstein) claiming, as she implies they do, that it's outrageous to cite a foreign court for a factual matter or a technical issue of how a law functions that's similar to US law. For example, if there is good experience about how an EU competition law functions, that could be quite relevant to the false negatives/false positives debate about how US antitrust law functions. But what some (generally conservative) commentators, including David, object to is, for example, using European norms to define standards of decency and "evolving" views of the U.S. cruel-and-unusual doctrine as relates to criminal punishment. U.S. antitrust law is intended to function as an evolving common law, which might look anywhere for good experience information. In contrast, U.S. constitutional law, at least in the conservative view, is supposed to be a fixed set of principles that can be interpreted for new situations but does not "evolve" (fundamentally change) based on the whims of new social majorities, particularly non-US social majorities. "Evolving" must be done via amendment, not court decision.

The strawman charge against David doesn't stick. And as a matter of commenting practice on this board, saying "strawman" doesn't fly unless you walk through the steps to back up your claim. Without some backup, it's just useless invective.
4.13.2009 11:39am
Paul B:

Tugh,

I don't think anyone would disagree with the argument that "it is not always irrelevant how other cultures approach similar issues." If my elected member of Congress or state legislature wishes to do that, I can certainly consider their voting records when casting my vote come election time.

When a Supreme Court judge with life tenure picks and chooses those aspects of foreign law that coincide with her personal policy preferences (does anyone here think that Justice Ginsburg will suddenly look at European laws and decide that abortion is a legislative and not judicial matter?) and uses them to strike down domestic laws, then she and any other judge is a tyrant.
4.13.2009 11:40am
ed (mail) (www):
Hmmm.

So applicable decisions in foreign courts are cribbable when the cases are precisely the same?

But how can that possibly be? Don't we have a couple centuries of precedence that wouldn't match that of a foreign court? Wouldn't any such decision not only have to be reasonable but it would have to comply with any precedence set by previous courts, past legislation and the combination of the US Constitution and state constitutions.

How on Earth is that even possible without deliberately ignoring some or all of those elements? And quite frankly if you're a SOCTUS judge intent on ignoring the US Constitution in the hopes of comity with foreign courts then perhaps an impeachment is in order?
4.13.2009 11:41am
Seamus (mail):

The Canadian Supreme Court, she said, is "probably cited more widely abroad than the U.S. Supreme Court."



Because foreign courts, like Justice Ginsberg, cite decisons of courts from outside their jurisdiction only when those decisions support the results they want to reach.
4.13.2009 11:41am
ruuffles (mail) (www):

In contrast, U.S. constitutional law, at least in the conservative view, is supposed to be a fixed set of principles that can be interpreted for new situations but does not "evolve" (fundamentally change) based on the whims of new social majorities, particularly non-US social majorities.

Seriously? Following that logic, the 2nd amendment would only apply to single shot rifles, and not semi-auto or auto weapons.
4.13.2009 11:43am
Tugh (mail):
David said,
<blockquote>
See, there's a problem with that already. Courts do not address "problems." They address cases. More precisely, the Supreme Court, with rare exceptions, addresses the interpretation of specific federal laws and the U.S. Constitution, as these laws apply to specific cases. Why would foreign judges face "the same or a similar problem" when they're not operating under the same statutory or constitutional framework?
</blockquote>


Because "specific cases" do not arise in vacuum. Federal laws and the US constitution are the expression of public's will. It may be useful to consider how other jurisdictions dealt with similar issues; while foreign statutes and constitutions are not identical to the US, they have similarities. Further, since the issues are often similar (eg. what is cruel and unusual? what is torture?), it may be useful to see how other countries/legal systems, at least the ones that share commonalities with US legal systems, approached these issues. Yes, their opinions are not binding on the US; they are only used as persuasive authorities.
4.13.2009 11:45am
Strict:

Justice Ginsburg's job is to apply the law they [the elected branches] have made, not to make up rules


If you wrote this 210 years ago, maybe it would be persuasive.

I'm not sure what's sadder, an American professor who can't grasp the idea of "common law," or an American professor telling a Supreme Court Justice what her job is.
4.13.2009 11:46am
DrGrishka (mail):
No, ruuffles. The principles are fixed not their application. That is why the 1st Amendment applies to the internet (because the principle of free and uninhibited speech is fixed and does not "evolve" to the point where "hate speech" is bannable a la Canada) and the 2d Amendment appleis to modern weaponry (because the principle of self-defense is fixed and does not "evolve" to the point where only obsolete weapons are covered).
4.13.2009 11:48am
Strict:

The U.S. can learn many things from foreigners. But what the U.S. Constitution means is not one of those things.


David,

Professor Volokh was born in the Ukraine [I think].

Are you saying we can't learn anything about the US Constitution from him?

Or are people from the Ukraine not "foreigners"?
4.13.2009 11:49am
einhverfr (mail) (www):
Ok, so here are my thoughts here.

First, the US court should NEVER look to foreign decisions as dispository in US Constitutional cases. Fortunately I don't think they ever do. Of course, in treaty cases foreign decisions have some persuasive say and one ought to look to them as mildly commanding. Furthermore, in the Hamdan case, the court appropriately used non-ratified treaties in the same treaty cluster to clarify portions of the ratified treaties (in the same way the congressional record might be cited).

However the fact is that there is absolutely nothing wrong with judges evaluating ideas from elsewhere in order to further support or undermine cases. In the 8th amendment death-penalty-for-teens case, the courts' ruling went something like "the vast majority of states outlaw this punishment, believing it to be wholely inappropriate. Therefore this doesn't pass 8th Amendment scrutiny. This case is further bolstered by the fact that the entire world has moved away from this practice." I didn't think that the foreign precedents were cited for stare decisis reasons but rather to try to put the states' trends into a wider perspective. I don't see anything wrong here.
4.13.2009 11:50am
ruuffles (mail) (www):

because the principle of self-defense is fixed

But the 2nd doesn't say self-defense. It says the right to "bear arms." If you argue "cruel and unusual" is fixed as it was written, then so should the type of weapon. Single shot rifles are still manufactured and widely availab.e
4.13.2009 11:50am
cboldt (mail):
-- Following that logic, the 2nd amendment would only apply to single shot rifles, and not semi-auto or auto weapons. --
.
LOL. "A fixed set of principles [e.g., 2nd A] that can be interpreted for new situations [e.g. technical advances beyond single shot rifles]"
.
Your logic is IL-logic.
4.13.2009 11:51am
einhverfr (mail) (www):
now, on torture cases, remember we have the Convention Against Torture, so I would even expect Scalia to be willing to look to foreign precedent on that matter.
4.13.2009 11:52am
einhverfr (mail) (www):
cboltd:

LOL. "A fixed set of principles [e.g., 2nd A] that can be interpreted for new situations [e.g. technical advances beyond single shot rifles]"


Sure, and a fixed set of principles (e.g. 8th A) can be interpreted in light of changes as to what the People (of the respective States) think is "Cruel" and "Unusual." Otherwise electric chairs might well be considered both....
4.13.2009 11:54am
Soronel Haetir (mail):
On the issue of the Israeli SC taking the power to invalidate laws despite Israel not having a constitution, I fail to see how this is terribly different from the US where SCOTUS has taken that power despite such a grant not being found in the document.

My understanding is that even today the English law lords can only rule that two provisions are incompatible without being able to invalidate either. Was this ever different? Given that our legal system evolved more or less directly from that of Great Britan such a move seems like a major break. Not that the UK has a written or even unwritten but particularly fixed constitution.
4.13.2009 11:54am
David Drake:
Based on what's in that NYT article (always a questionable source for facts), Justice Ginsburg:

1. Has a very poor grasp of history;
2. Has a poor grasp of her job as a U.S. Supreme Court Justice; and
3. Has questionable taste in operas.
4.13.2009 11:54am
DrGrishka (mail):
Ruufles, the etxt must be interpreted with reference to what the ratifiers undersood it to mean. And they understoof it to mean right to keep and bear arms for self-defense and defense of liberty. Just like they understood "freedom of speech and press" to include hand-written letters even though they are neither speech nor press.
4.13.2009 11:54am
Patrick from OZ (mail):
Aside from everything else, the line about Canada being more widely cited is ridiculous. Who cares? The fact is that the American Constitution is reasonably radical in the constitutional world, so it has less comparative value. But that is a meaningless statement from an American perspective!

Also, the American Constitution is one of (the??) world's oldest, and thus has an entrenched jurisprudence which increases its 'peculiarity' (non-pejorative use for the benefit of any sensitive jerks out there).

In Australia, we have almost copied large slabs of your Constitution. But we almost never cite it in Constitutional jurisprudence, because frankly, your Commerce Clause jurisprudence, Establishment Clause jurisprudence, etc, are simply not relevant to the Australian (almost word-for-word) homologues. What is relevant is the conditions at the time and the intentions of our own framers, so we cite your jurisprudence to the extent that it is relevant there. To that end we would cite British authorities (usually non-judicial) as well.

But: 'America has the same words and they did/thought this' is simply a non-argument here, as, logically, it should be anywhere. And Justice Ginsberg should know this.

Constitutions, of all the law, are the part most intimately connected with national history, politics and experience. There is possibly no area where foreign jurisprudence is less likely to assist.
4.13.2009 11:54am
David M. Nieporent (www):
Professor Volokh was born in the Ukraine [I think].

Are you saying we can't learn anything about the US Constitution from him?
Yes, that is exactly what I am saying. You have interpreted my blog comment entirely reasonably and accurately, and have correctly discerned the meaning of what I was saying, with no silly worries about "context" or anything like that.
4.13.2009 11:55am
Patrick from OZ (mail):
Soronel, you are kinda right. That is the operation of the EU Human Rights Act. An actually unconstitutional Act (a rare beast in the UK) is simply invalid. Where two Acts are in conflict, one prevails, either by virtue of specificity or by implied repeal.

A declaration of 'Incompatibility' is only a remedy where an Act is complained to be in breach of the Human Rights Act.
4.13.2009 11:57am
Oren:
No one is going to blog about Justice Thomas being in awe of a dishwasher?

On the other hand, the relevance to legal proceedings is quite thin ...
4.13.2009 12:05pm
Strict:

Without some backup, it's just useless invective.


Maybe it's logically wrong, but it's not invective. That's a bit strong.


Has questionable taste in operas.


Wagner is pretty good. 6 hours is really long, though.
4.13.2009 12:05pm
TerrencePhilip:
I'll look forward with interest to her citations to Chinese cases on the death penalty, and Iranian decisions on the constitutional rights of women.

Good point on her bungled "Nazi Germany" comparison, DB, that leapt out at me as well. Of course the Times makes no effort to point out the glaring misrepresentation of the facts she made. But really, why bother- anything goes.
4.13.2009 12:05pm
Federal Dog:
"There is one reason for that, she said: "You will not be listened to if you don't listen to others."

Really, who cares?"

Exactly. It is very troubling that her values so plainly center on being the focus of attention.

Term limits.
4.13.2009 12:07pm
Michael Alexander:
I can think of two reasons why Canada's constitution has been cited more than ours: First, they are a commonwealth country - other commonwealth countries would be more likely to look to them. Second, they dealt with a secessionist (sp?) movement (Quebec), and their court wrote an opinion about that. That is something I suppose other courts dealing with the issue would look to. (If our country ever had a seccesionist movement, maybe some foreign jurisprudence would be useful.)

Any other reasons (besides Ginsburg's views) of why other courts wouldn't cite SCOTUS?
4.13.2009 12:12pm
rosetta's stones:
So, Ginsburg makes it a prime concern that foreigners "listen" to her, and advocates reciprocal "listening" to support her prime concern, so that others might then be obliged to "listen" to her?

She needs to go. Her oath is to the US, and the US is her prime concern. Be gone.

We need more turnover in these positions, not less. Ginsburg is not so much a citizen of the world as she is a citizen of her own little cloistered world, of longterm incumbency.
4.13.2009 12:17pm
Rhode Island Lawyer:

And note the irony that there is one national "constitutional court" that did stand in the way of rising tide of fascism and fascist-inspired policies in the 1930s, and that's the U.S. Supreme Court. The Court invalidated various New Deal policies, in particular the National Industrial Recovery Act (unanimously), that threatened to concentrate far too much unreviewable power in the hands of the President (in the case of the NIRA, the power to set wages and prices across a broad swath of the American economy).


David, are you seriously suggesting that various new deal proposals reflected a "rising tide of fascism" in the US? A little over the top, no?
4.13.2009 12:20pm
H. Simpson:
A decent respect to the opinions of mankind.
4.13.2009 12:25pm
Daniel San:
It really comes down to the argument about the "Living Constitution." If the sole duty of a judge is to "do good," then anything that sheds light on the meaning of "good" is relevant. If the sole duty of a judge is to interpret the text of the law, then the relevant tools are far more narrow. If the duty is somewhere in between, it may get a bit more muddy. Most arguments about this issue go something like "a foreign court should't be deciding the meaning of the U.S. Constitution" "Why can't foreigners teach us anything about morality?" We are talking past each other.
4.13.2009 12:32pm
ShelbyC:

Or are people from the Ukraine not "foreigners"?


In the context of a discussion about foreign judges and foreign judicial opinions, US con law profs born in the Ukraine are not "foreigners".
4.13.2009 12:39pm
DrGrishka (mail):
H. Simpson,

A decent respect to the opinions of mankind is necessary when drafting laws or a new system of governance. That is why I have no problem with our judges visiting Europe or Asia and sharing their experience on how courts work, the functions of the juries, term limits versus life-time appointments and the like.

Likewise, I have little problem with Europeans coming over and sharing their experience on nationalized healthcare, common currency, labor law, immigration law, and the like. hell, I don't even have a problem with foreign judges sharing information about how their common law tort rules affected certain economic activities, and our judges then relying on that information in crafting our own common law rules.

That is good information for both sides to hear.

The problem is, it is not the job of a judge to enact policies, except when applying common law rules on torts, property, contracts and the like. When our judges must interpret our legal documents that were enacted by our legislators, the "opinions of mankind" do not matter. What matters is what our legislators passed into law.
4.13.2009 12:43pm
David M. Nieporent (www):
David, are you seriously suggesting that various new deal proposals reflected a "rising tide of fascism" in the US? A little over the top, no?
If you equate fascism to Naziism, then yes, it's over the top. But they aren't the same. FDR's economic policies, the ones struck down by the Court, were strikingly similar to Mussolini's. Not just in narrow details, but in the way he wanted to fundamentally restructure the economy as a command-and-control economy with el jefe in charge.


(Meanwhile, FDR (a) broke the two-term norm by continually running for office, and (b) tried to intimidate Supreme Court justices who disagreed with him by threatening to pack the court with his supporters if they refused to go along with him. Those are the sorts of actions we'd expect to hear about in, say, Russia, Venezuela, or Mussolini's Italy, not in a liberal republic.)
4.13.2009 12:48pm
Brett Bellmore:

David, are you seriously suggesting that various new deal proposals reflected a "rising tide of fascism" in the US? A little over the top, no?


Not the least over the top; Prior to WWII, fascism didn't have the same stink it's had since, and many here thought it was the wave of the future.

Facism, as an economic ideology, is a pretty good description of much of the New Deal. And, for that matter, a pretty good description of what Washington is doing now, with the government taking over corporations left and right.
4.13.2009 12:49pm
Oren:

When our judges must interpret our legal documents that were enacted by our legislators, the "opinions of mankind" do not matter. What matters is what our legislators passed into law.

And when our laws, by their very intentional construction, make, adopt normative standards by reference (e.g. "cruel and unusual", "unreasonable searches and seizures", "due process"), the opinions of mankind might be useful in order to determine what those phrases mean in the present tense.
4.13.2009 12:49pm
karl m (mail):
After roe vs wade , the Bundestag copycated it into law. The Karlrouse Court declared it void. It was to broad.
The same Court ordered the Christ not the Cross out of the classroom. Catholic Baviera lander refused to do so. They passed a law oredering a negotiated solution. The Chirist remain ther. No caterpillar ordered by the Court has removed it
Death penalty is legal in 100 states including the Vatican ( see the Chatecism)
Spain release one 9-11 participant based on the exclusionary rule copied from the USA
4.13.2009 12:55pm
Gekkobear (mail):
"A decent respect to the opinions of mankind is necessary when drafting laws or a new system of governance. That is why I have no problem with our judges visiting Europe or Asia and sharing their experience on how courts work, the functions of the juries, term limits versus life-time appointments and the like. "

Right, because our Judges draft laws all the time... why do we have a legislature anyhow? They're just redundant given that Judges are there to draft laws and craft legislature and aren't there at all to determine if a law is Constitutional or if an application of the law by the Executive branch meets the law as written.

Nope, Judges are there to draft laws and create a new system of Governance. At least you're honest with your desire to have Judges replace the legislature and rewrite the Constitution with no checks or balances on their power.

Now if you were a Conservative, who thought that all three branches of Government should have different and distinct powers; then you might feel differently.

But since you clearly are proposing krytocracy (Government controlled and ruled by Judges) you're honest about your desire to see judges write laws, craft a new form of Government, etc.

However you might be surprised to find that not everyone believes that krytocracy is the best form of Government. Some foolish people think a Representative Republic might be preferable.
4.13.2009 12:59pm
DrGrishka (mail):
Oren,

When the enacted law adopted some foreign standard, that standard is relevant and should be looked into by the judges. But I am skeptical that any of our laws adopted updatable foreign standards. It may be that when we encated law X, we found the experience of New Zealand in the area covered by law X to be particularly instructive, and decided to copy it. That fact that New Zealand has since abrogated law X because it decided that after all it creates more problems than it solves does not mean that our validly enacted law also falls or should be intepreted in such a way as to take New Zealand's subsequent actions into account.
4.13.2009 1:02pm
Jon Roland (mail) (www):
The issues are complicated by the Constitution making the SC a court of equity as well as a court of law, and by giving it original or appellate jurisdiction over international cases. Interpretation of an international treaty or contract may very well need to look to foreign court decisions. An example would be a foreign court decision on divorce and child custody. Our courts may not want to give "full faith and credit" to foreign court decisions in such cases, but it is difficult not to at least include them in the discussion.

But as long as we reject foreign court decisions being treated as binding stare decisis perhaps we should look at doing the same for the decisions of our own courts that are foreign to the Constitution, and treating their decisions as only perhaps persuasive and not binding.
4.13.2009 1:05pm
ed (mail) (www):
Hmmmm.

@ ruuffles

"Seriously? Following that logic, the 2nd amendment would only apply to single shot rifles, and not semi-auto or auto weapons."

That's frankly silly. The 2nd Amendment states "arms" not "single shot rifles".

This is another case of a witless wit pretending to be witty.
4.13.2009 1:07pm
Bored Lawyer:

I'm not sure what's sadder, an American professor who can't grasp the idea of "common law," or an American professor telling a Supreme Court Justice what her job is.


What's sad is your inability to grasp the difference between common law jurisprudence and Constitutional jurisprudence. The Supreme Court hears very little of the former but quite a lot of the latter, and it is use of foreign law to intepret the latter which is most objectionable.

(STATE Supreme Courts, on the other hand, do here quite a bit of common law cases. Perhaps we would feel better if Ginsburg were sitting on a State Supreme Court.)
4.13.2009 1:27pm