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Citing Foreign Law, the Culture Wars, and the Law Review Article Hypo:
In his post below, David notes Justice Ginsburg's puzzlement about opposition to citing foreign law when interpreting the U.S. Constitution: "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?" This is a fair question. Conservatives haven't gone nuts when judges cite law professors; why go nuts when judges cite foreign law?

  I think the reason is that the Justices who favor citing foreign law have done so in a way that takes sides in the culture wars. Any time a Supreme Court Justice uses language or cites sources that indicate having taken sides in the culture wars, the other side is pretty much guaranteed to go bonkers. Here's what I said about this back in 2005:
  The Supreme Court's citations to foreign law have appeared in highly controversial cases at the heart of a national sociopolitical divide between (for lack of better labels) social conservativism and modern liberalism. The kinds of foreign countries that a Supreme Court Justice might know best mostly don't share this sociopolitical divide: in those countries, and especially their court systems, the views of modern liberalism for the most part have won out. In this environment, stressing similarities with foreign court decisions can seem a lot like taking sides in the culture wars.
  Of course, the Supreme Court has to rule one way or another in its cases, so in one sense it has to take a side. But citing and discussing foreign law for "confirmation" of a Constitutional holding does more than rule one way or another: it is a reflection of cultural association, an indication that at least some Justices envision themselves as part of a community that happens to be strongly identified with one side of these highly contested debates. Those that object to foreign law are not really concerned that foreign law is somehow binding on the United States, or that it represents a loss of U.S. sovereignty. To the contrary: it is the very fact that such law is obviously not binding under traditional methods of constitutional interpretation that makes the discussions of foreign law most objectionable to its critics. The fact that foreign law isn't binding, but that the Justices have gone out of their way to mention it anyway, fosters the impression that the Justices identify themselves with a side in the culture wars.
  This works both ways. When a Justice writes an opinion that suggests an identification with the conservative side of the culture wars, it readily triggers a great deal of consternation if not anger from the cultural left. Recent examples include Justice Kennedy's opinion in Gonzales v. Carhart (with its suggestion that abortion may be harmful to the mental health of the mother) and Justice Scalia's dissent in Lawrence v. Texas (especially the line about "the homosexual agenda"). Both of these opinions echoed the language and priorities of the conservative side of the culture wars, triggering a lot of outrage and anger among political liberals. Indeed, the opinions continue to sting years later, as we saw with Rep. Barney Frank's recent accusation that Justice Scalia is a homophobe based on his dissents in Lawrence and Romer.

  Let's return to Justice Ginsburg's question: "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?" The difficulty is that if Ginsburg used law review articles in the same way as she favors using foreign law, it would cause the same reaction. The controversial citations to foreign law haven't been to specific decisions that the Justices point out as particularly deep or insightful. The Supreme Court never says, "Golly, I found this opinion by Lord Hobhouse of Woodbury and it's just briliant —it totally changed my mind about the nature of privileges and immunities!" Rather, controversial citations to foreign law tend to arise as part of a survey. Looking at the general category of foreign opinions, the thinking goes, we see a trend. Indeed, it's not even really clear that the Justice who wrote the opinion actually read the foreign law decision that is allegedly so wise.

  An accurate analogy to citing law review articles would therefore go something like this. Imagine a Supreme Court decision striking down an abortion restriction that included this paragraph:
  In reaching our decision, we find confirmation in the scholarship of our nation's law professors and law students. A review of legal scholarship indicates that it is overwhelming against abortion restrictions of this type. Our research has uncovered 19 articles and 42 student comments on this issue, and all but six take a critical position towards legislation such as the one before us. See, e.g., Lawrence Tribe, . . . . [citations omitted] We have much to learn from the wisdom of our scholars, both on faculties and those still in law school who are our scholars of the future. We see their judgment as further confirmation that our decision is correct.
  I would think that would cause the same reaction among conservatives triggered by the Court's citation to foreign law in cases like Lawrence and Roper. It's not about "sources of wisdom," it's about the culture wars.

Related Posts (on one page):

  1. Justice Ginsburg, the Holocaust, and Judicial Review:
  2. Citing Foreign Law, the Culture Wars, and the Law Review Article Hypo:
  3. Ginsburg on Citing Foreign Legal Decisions:
Monkberrymoon:
I think another (maybe too obvious) problem with the analogy between foreign judges and American law professors is that the professors are at least writing about and thinking about American law and the American constitution. When a German judge decides some issue of import to his country (or to Europe), American law is usually irrelevant.
4.13.2009 12:15pm
Monkberrymoon:
Woops, I just realized that DB already made that point.
4.13.2009 12:17pm
TerrencePhilip:
Good point- Justice Ginsburg is unlikely to be informed by the "wisdom" of Iranian and Saudi judges in cases involving women's or gay rights, or Chinese judges in death-penalty cases.
4.13.2009 12:18pm
Ben S. (mail):
Honestly, I think you might be missing the point, Prof. Kerr. The analogy between foreign law and academic scholarship is totally ridiculous because foreign courts are not even purporting to interpret OUR constitution, whereas American academics are at least attempting to do just that. Thus, when a court cites your law review article on, for example, the Fourth Amendment, it is indicating that your interpretation of that amendment is a reasonable one.

But a citation to foreign law has no bearing on what our Constitution means, except to the extent that it is meant to provide historical backdrop for what terms in our Constitution might have meant in the era in which they were written. And, of course, it is almost never cited for this purpose. Instead, foreign law is marshaled in support of one global consensus or another.

I would have thought this was a rather obvious point . . .
4.13.2009 12:20pm
Ben S. (mail):

Woops, I just realized that DB already made that point.


Yes, I did too. And I only did after realizing that you also made the same point. I swear your comment wasn't there a moment ago (and, of course, I did not read DB's blog post before responding to Prof. Kerr's). Le sigh.
4.13.2009 12:22pm
J. Aldridge:
This is the Ginsburg who agrees the Constitution should be taken out of context to justify decisions like Roe. See interview with Princeton University Provost Christopher Eisgruber, October '08.
4.13.2009 12:26pm
NaG (mail):
The right way to use a law review article is as a handy historical record or compendium of case law on a particular matter. It is not a good idea to cite a law review article for an example of an argument that the judge finds persuasive.

My take on Justice Ginsburg's comments is that she apparently envisons a kind of global law with shared norms, and she wants the U.S. to be a leader in crafting that law. Assimilating other cultures into our way of thinking may very well be a good idea over time, so I cannot simply discount Justice Ginsburg's view. However, the problem is that the citation of foreign law has been used to take a position on matters of policy, not law. If there are canons of construction that other countries use that we don't, but make sense, I can see a judge importing those to use in a case. But the notion that "If Israel thinks it's bad, then it's bad for us," well, that leads to all sorts of problems that Justice Scalia has raised in the past. For every country that has adopted the prefered policy, the dissenter can always ask why another country's law, that has not adopted the policy, was not picked. Abortion is a prime example, as there are many countries that have banned abortion. Why not look to their judicial pronouncements for guidance?

The best way we can lead the world legally is for our Courts to set an example for how a written Constitution can be enforced to protect individual rights. There are many constitutions out there that look good on paper and then mean nothing in the country's courts. We can be the antidote for that. Do we really need to think grander than that humble goal?
4.13.2009 12:28pm
DangerMouse:
Our research has uncovered 19 articles and 42 student comments on this issue, and all but six take a critical position towards legislation such as the one before us.

Perhaps the problem of Judges taking sides could be avoided if their polling were stronger. Here's an idea: instead of looking at law review articles or foreign courts, the Judges should look towards a REALLY BROAD POLL. It could be a poll that happens routinely, like the Tuesday after the first Monday in November. And it would sample a LOT of people, like anyone above 18 who says they want to participate in the poll and provides some basic identifying information. And the poll would permit people to signal their consent to government policies somehow....
4.13.2009 12:30pm
PLR:
Honestly, I think you might be missing the point, Prof. Kerr. The analogy between foreign law and academic scholarship is totally ridiculous because foreign courts are not even purporting to interpret OUR constitution, whereas American academics are at least attempting to do just that.

I think that's being a little charitable, or perhaps naive.
4.13.2009 12:30pm
Vermando (mail) (www):
I think that's very insightful. Thank you professor.
4.13.2009 12:37pm
Simon Dodd (mail) (www):
With respect, I think Bernstein is closer to the mark. That foreign law is being used to come down on one side of the culture wars may amplify the reaction, it isn't the source of the concern. Moreover, the "taking sides" theory can't explain the negative reaction to such citations by people who are not culture warriors (see, e.g., Frank Easterbrook, Foreign Sources &the American Constitution, 30 Harv. J. of L. &Pub. Pol. 223 (2006); Richard Posner, No thanks, we already have our own laws (2004)).
4.13.2009 12:45pm
Oren:

Justice Ginsburg is unlikely to be informed by the "wisdom" of Iranian and Saudi judges in cases involving women's or gay rights, or Chinese judges in death-penalty cases.

Are their arguments terribly persuasive to you? I mean, that's all that foreign legal norms can be -- persuasive.
4.13.2009 12:45pm
Frog Leg (mail):
This is a very interesting post.

The pushing hot button issues does seem to be very relevant. What is particularly interesting to me, is that while both Left and Right seem to react the same way to the other side pushing sensitive issues, the type of sensitive issues are very different. For the Left, the issues mentioned are very concrete--the discussion of the actual impact of abortion on women, the acts of a particular group pushing a "homosexual agenda." In contrast, for the Right, the issue mentioned here (use of transnational sources for legal interpretation) is very abstract. This distinction seems important, although I am not sure of its implications.
4.13.2009 12:46pm
Tugh (mail):
Orin,

Very good post. I agree that cultural wars animate much of the arguments about the role of international law. While conservatives are up in arms about it now, as soon as the Court uses international law consensus to restrict free speech, for example, you can be sure that the ACLU will be making arguments that international law is not relevant to free speech issues.
4.13.2009 12:54pm
AlleenSmithee (mail):
To claim that "it's all about the culture wars" implies that everyone involved is a warrior in a fight. Certainly, there are those who see everything in terms of an "us vs. them" war between Left and Right. But everyone?

I suspect that what really enrages the Right about citing foreign law is that it offends our American sense of pride, our "exceptionalism". We have nothing to learn from anyone else. In fact, all other countries should be learning from us! It's a classic conservative viewpoint, no?
4.13.2009 12:55pm
nzdave:
You're talking about citing foreign law as if this is something Supreme Court justices just dreamt up. Remember though, that despite the theory that American law was severed from English Common Law as of 1776, there are plenty of American courts have cited to British cases decided long after: for example, Chief Judge Cardozo's (as he then was) opinion in Palsgraff v. LIRR(perhaps the seminal early American negligence case) cites a British authority from 1887. I certainly don't think it was controversial at the time. The tort of negligence actually, in large part, grew in parallel in the US and the UK.
4.13.2009 12:59pm
AF:
Orin,

This is a very good post. The clear implication of your analysis, it seems to me, is that complaints about citing of foreign law are no more than complaints about liberal jurisprudence. The corollary is that there is nothing "wrong" with liberal justices' citing foreign law that isn't "wrong" with liberal jurisprudence in general.

Do you agree?
4.13.2009 1:00pm
Hans Bader (mail) (www):
Justice Ginsburg doesn't look to foreign law in a consistent manner, but does so when it conveniently produces a liberal outcome. Foreign law usually forbids punitive damages, but Ginsburg is the most adamant opponent on the Supreme Court of limiting punitive damages.

When interpreting the Warsaw Convention -- an international agreement where foreign court rulings would be directly relevant, since they are interpreting the same text -- she doesn't pay any attention to foreign courts. Doing so would lead to a conservative result (less damages liability).

She only pays attention to foreign courts when it produces a liberal outcome, like ending the death penalty for juveniles.

She ignores international opinion in giving short shrift to treaties between the U.S. and foreign countries barring double taxation and limiting unitary taxation.
4.13.2009 1:01pm
Steve:
The conservative base seems to get quite agitated over stuff like the Law of the Sea Treaty, which suggests that they have a genuine concern over issues of U.S. sovereignty even where the culture war is not implicated.
4.13.2009 1:05pm
nzdave:
Hans:

Good point. The entire American system of tort law -- class actions, damage doubling/trebling statutes, the "American rule" of attorney fees, lawyers on commission -- is exceptional, and goes against the jurisprudence of other common law countries. Funny she doesn't cite foreign law to argue against that.
4.13.2009 1:07pm
BABH:
Prof Kerr has it right. It's a matter of basic intellectual honesty to give a citation when using someone else's idea or argument. To do otherwise is plagiarism, whether your source is Harold Koh or Muammar Gaddafi.

This strange jingoism seems only to arise when social conservatives are already clutching their pearls over a result that is not to their taste.
4.13.2009 1:07pm
AlleenSmithee (mail):
Simon Dodd claims that Richard Posner and Frank Easterbrook are not "culture warriors" in his comment above:
http://volokh.com/posts/1239637191.shtml#562355

He can't be referring to the Posner who posts here:
http://www.becker-posner-blog.com/index.html
...and wrote: "liberal failures include underestimating the cost of egalitarianism and of social engineering by judges (the Warren Court, Roe v. Wade, the near abolition of capital punishment)..."

Judges Easterbrook and Posner were singled out for criticism in 1994 by the Chicago Council of Lawyers, Easterbrook for arrogant and intolerant behavior. Could it be because they are both Reagan appointees? Posner has recently commented about the report, "You have here some anonymous people who are talking to the Chicago Council of Lawyers. How much credence should we put on these people?" he says. "They can be sore losers. They can be crybabies."

Sounds like a skirmish in the culture wars to me.
4.13.2009 1:18pm
James Gibson (mail):
To me this is just part of a mental attitude of people to look for some document or statement by someone else that supports a view they already have and then use that person or document as the excuse for holding said view point.

In short, was Michael Bellisiles book arming America accepted because of the quality of his words and research. Or was it because people wanted to say that the founders wanted everyone banned from owning guns except their special militia.

Did AG Cummings in 1938 submit the "Social History of the World" because of its scholarship (the Miller case) or was it simply to suppport his view that the militia (AKA the National Guard) was outmoded and a farce. The document lamblasted the National Guard system, but also praised the German society in the 1930s as a model for the world. It also stated that the draft was now obsolete because, in order to minimise casualties caused by machineguns, lieutenents would have to increase the spacing between the men to such an extent that they couldn't give effective orders.
4.13.2009 1:23pm
Houston Lawyer:
There are a lot of areas where the legal practices of our Continental brethren would sharply curtail plaintiff friendly practices in this country. The shrieking would be fierce if the conservative justices would rule that contingency fees are against public policy. I'm not holding my breath waiting for the justices to start citing those laws as reasons to change our current practices.
4.13.2009 1:24pm
Zywicki (mail):
If, just once, the proponents of greater use of foreign law would cite it to support a proposition different from their predetermined preferences, then I would place more credence on its use. For instance, does the Supreme Court ever cite foreign law to evidence evolving world standards on abortion regulation, free speech, or criminal procedure, all areas for which the United States's rules are more liberal than the rest of the world (although I don't even think I know what it means to be "liberal" on free speech anymore)?

But I think Orin's basic point is correct--the difference is between citing sources for their persuasiveness versus citing them for their implicit authority.
4.13.2009 1:27pm
ruuffles (mail) (www):

Foreign law usually forbids punitive damages, but Ginsburg is the most adamant opponent on the Supreme Court of limiting punitive damages.

Perhaps because the Constitution doesn't mention damages, so states are free to implement their own limits or lack thereof?
4.13.2009 1:29pm
martinned (mail) (www):
Just as an example of citing foreign law done right, here's the two key rulings of the UK House of Lords in torture cases:

A. v Secretary of State for the Home Department (2004)

A. v Secretary of State for the Home Department (2005)

They cite massive amounts of case law from all over the Western world, including several US Supreme Court cases, to solve questions that is unanswered in UK law.

Note, BTW, that there is no legal system more unlike any other than the UK. Only the UK has parliamentary sovereignty, only in the UK is common law still as important relative to statute law, etc.
4.13.2009 1:31pm
Thorley Winston (mail) (www):
The conservative base seems to get quite agitated over stuff like the Law of the Sea Treaty, which suggests that they have a genuine concern over issues of U.S. sovereignty even where the culture war is not implicated.


Good point, I don't think anyone seriously believes that both sides are equally likely to try to use foreign law to bolster their respective arguments in the culture wars.
4.13.2009 1:37pm
OrinKerr:
AF writes:

Orin,

This is a very good post. The clear implication of your analysis, it seems to me, is that complaints about citing of foreign law are no more than complaints about liberal jurisprudence. The corollary is that there is nothing "wrong" with liberal justices' citing foreign law that isn't "wrong" with liberal jurisprudence in general.

Do you agree?
I agree that this is a good post, although I'm not sure I would call it "very good" given that it is largely derivative on the post from 2005.

As to the second point, I don't know what you think "liberal jurisprudence" is, or why you think that the complaints here are related to "liberal jurisprudence." Can you explain the term and what it means?
4.13.2009 1:41pm
OrinKerr:
Oh, and I should add that if "liberal jurisprudence" means "reaching liberal results," then I do think this is quite different: This is about how the style of an opinion reveals allegiances to different cultural movements, not the Court's holding or how it interprets precedents or text.
4.13.2009 1:45pm
Melancton Smith:
Didn't some amazing con law scholar claim that what works in Chicago may not work in Cheyenne? How about what works in Shanghai?
4.13.2009 1:51pm
Virginia:
At the root of this whole debate are fundamentally different understandings of what "constitutional law" is and what judges do.

If "constitutional law" is basically synonymous with "justice," broadly defined, and the role of judges is to divine what is just, like philosopher-priests, then a decision written by a judge in another country might be persuasive and worth citing in an opinion on an issue of constitutional law if the foreign judge shares the American judge's sense of justice.

On the other hand, if "constitutional law" is something akin to statutory law and the role of the judge is to understand and implement that law as the sovereign expected it to be understood and implemented, it's difficult to see what light a foreign decision would shed on an American judge's task.
4.13.2009 1:56pm
einhverfr (mail) (www):
Ben S:

Honestly, I think you might be missing the point, Prof. Kerr. The analogy between foreign law and academic scholarship is totally ridiculous because foreign courts are not even purporting to interpret OUR constitution, whereas American academics are at least attempting to do just that. Thus, when a court cites your law review article on, for example, the Fourth Amendment, it is indicating that your interpretation of that amendment is a reasonable one.


Maybe, maybe not. There are many OTHER cases which center around the rightful role of foreign precedent in certain types of legal issues. For example, if an asthmatic requests a seat on an international airline far removed from the smoking section and the airline does not accommodate him, and he dies, is the airline liable under international treaties? Would this be a distinguishable question from how we look at foreign precedent regarding the Convention Against Torture?

The controversial cases are controversial regardless of whether the court seeks to further strengthen their opinions by looking to foreign courts. In some cases, like the torture hypothetical that Ginsberg raises, looking to foreign precedent seems quite proper because the root issue may be a shared understanding of a treaty. Yet, nobody complains when Scalia says we should look to foreign court rulings in determining whether an airline is liable under the Warsaw Convention....

Maybe it is about the culture wars and not about the actual use of foreign law and precedent as determining certain narrow matters of treaty law, as well as matters of contextual fact regarding US Constitutional cases. So maybe Kerr's point is closer to the truth than Bernstein's.
4.13.2009 1:58pm
AF:

As to the second point, I don't know what you think "liberal jurisprudence" is, or why you think that the complaints here are related to "liberal jurisprudence." Can you explain the term and what it means?


In the context of my question, it means "identif[ying] themselves with a side in the culture wars."
4.13.2009 1:59pm
Ben S. (mail):

You're talking about citing foreign law as if this is something Supreme Court justices just dreamt up. Remember though, that despite the theory that American law was severed from English Common Law as of 1776, there are plenty of American courts have cited to British cases decided long after: for example, Chief Judge Cardozo's (as he then was) opinion in Palsgraff v. LIRR(perhaps the seminal early American negligence case) cites a British authority from 1887. I certainly don't think it was controversial at the time. The tort of negligence actually, in large part, grew in parallel in the US and the UK.


The point, though, is that courts creating common law are, by definition, not bound by any document. For the better part of the last century, torts was largely based on the common law rather than statutory law. Common law is unique specifically because it is sort of made up as you go along.

Although I am a conservative and think reliance on foreign law is ridiculous in the context of constitutional interpretation, I really don't have a problem with it when it comes to common-law issues like property, torts, or contracts.
4.13.2009 2:00pm
einhverfr (mail) (www):
The airline case was Olympic Airways vs. Hussain. Scalia's dissent was based largely on foreign court precedents.

Scalia wrote:

When we interpret a treaty, we accord the judgments of our sister signatories " 'considerable weight.' " Air France v. Saks, 470 U.S. 392, 404 (1985). True to that canon, our previous Warsaw Convention opinions have carefully considered foreign case law. See, e.g., El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 173—174 (1999); Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 550—551 (1991); Saks, supra, at 404. Today's decision stands out for its failure to give any serious consideration to how the courts of our treaty partners have resolved the legal issues before us.


Why would it be different in the question of the Convention Against Torture?
4.13.2009 2:03pm
martinned (mail) (www):

Yet, nobody complains when Scalia says we should look to foreign court rulings in determining whether an airline is liable under the Warsaw Convention....

Just for the record: most contintental European courts would never dream of doing even that. (Though I think they should.) Even with a bilateral treaty, a court here might take note of how it has been interpreted by courts in the other contracting party, and then quite happily go the other way if it thinks that is what the law requires.

(Needless to say, in such circumstances the foreign case law wouldn't even get mentioned by the court, although in their defence continental European rulings are much shorter and cite much less case law anyway.)
4.13.2009 2:06pm
OrinKerr:
AF,

In my experience, judicial opinions even in the mostly hotly political areas usually go out of their way to avoid associating with the culture wars. They normally take pains to emphasize that the decision is based on law, not public policy.
4.13.2009 2:06pm
Ben S. (mail):

I think that's being a little charitable, or perhaps naive.


I take it that being unreasonably hypercritical is still chic these days?
4.13.2009 2:06pm
OrinKerr:
The conservative base seems to get quite agitated over stuff like the Law of the Sea Treaty, which suggests that they have a genuine concern over issues of U.S. sovereignty even where the culture war is not implicated.


I don't think I even know what the law of the sea treaty is, and as far as I know I haven't heard of any controversies about it. What are the controversies, Steve?

Oh, and PLR &Ben S. -- please keep it civil.
4.13.2009 2:10pm
Anderson (mail):
I think that's very insightful. Thank you professor.

Concur. There are probably a few law profs who get genuinely out-of-joint over citations to foreign law in constitutional interpretation, but they're not getting the issue bruited on FOX News.
4.13.2009 2:10pm
martinned (mail) (www):

The point, though, is that courts creating common law are, by definition, not bound by any document. For the better part of the last century, torts was largely based on the common law rather than statutory law. Common law is unique specifically because it is sort of made up as you go along.

@Ben S.: I guess that is essentially the problem. Given how short the US constitution is, I don't think it would be unreasonable to say that it is subject to the common law method.

The same goes for the Sherman Act, for example. Both competition law and constitutional law consist of huge buildings of case law constructed on top of just a few sentences of written law. Arguably, in both cases the courts have been given a mandate to develop a body of common law.

I guess that is why this discussion wouldn't occur anywhere else. In the UK, almost everything is common law, and in the continent, constitutions are written in such detail that there is very little room for the common law method, even if the courts were so inclined.
4.13.2009 2:10pm
Assistant Village Idiot (mail) (www):
I note with a sigh that again, some commenters are unable to discuss the conservative side of the argument without tossing gratuitous insult into the mix. Please no. All it does is convince me that you have reacted reflexively rather than thinking about the issue, undermining whatever point you wish to make. (What prompts progressives to put more energy into the cleverness of the insult than into thinking about the issue?)

Culture war issue - yes, indeedy, and both NaG and the conspirators touch on good points. Part of the culture war is an over-reliance on European internationalist values by progressives in general, leading to a suspicion by conservatives that more liberal judges have a similar loyalty on the issue. Granted, many conservatives are over-suspicious on the point, and an insightful bit of reasoning by a foreign legal mind should not be rejected on mere provenance.

I am frequently told by the social workers, psychologists, and humanities professors of my aquaintance - an unfortunately large number, given my employment - how much more European we should be: better health care, education, diplomacy, support of the arts. Even minor contrary information does not seem to penetrate. Aspiration to some murky shared internationalism seems to be an article of progressive faith. Therefore, the citing of a European example in law legitimately raises the question in the conservative mind: is this actually a good idea, or just one more example of progressive romanticism?
4.13.2009 2:11pm
einhverfr (mail) (www):
Martinned:

Just for the record: most contintental European courts would never dream of doing even that. (Though I think they should.) Even with a bilateral treaty, a court here might take note of how it has been interpreted by courts in the other contracting party, and then quite happily go the other way if it thinks that is what the law requires.


Scalia likewise doesn't think we should be bound fundamentally to foreign courts rulings in these area, just that we should give them "considerable weight" (Olympic Airways v. Hussain, citing Air France v. Saks).
4.13.2009 2:15pm
einhverfr (mail) (www):
Scalia's view was the dissent. Sorry for not including it in my cite but IANAL ;-)
4.13.2009 2:15pm
einhverfr (mail) (www):
Also note that in Olympic Arways, the opinion of the court was delivered by Thomas, while the dissent came from Scalia. I actually thought Scalia's dissent was better than Thomas's opinion, but.....
4.13.2009 2:17pm
AndrewK (mail):
I wonder if Scalia wouldn't be more amenable to citing foreign law if his colleagues subscribed to his semantic theories of the law. If Scalia cited foreign law, there would be no danger, since at its strongest it would be anecdotal to highlight an apparent absurdity. Yet if you accept a consensus, "living constitution" semantics theory (to put it crudely), citing foreign sources is much more dangerous.

So while I completely agree with Ginsburg that foreign law is no more controversial than a law review article, this is problematic because when SHE cites a law review article, it may be as evidence of current public consensus that is, on Scalia's view, irrelevant to the question of the meaning of the law. When Scalia cites a law review article, it is for a much more limited purpose.
4.13.2009 2:24pm
Sagar:
Oren:
Justice Ginsburg is unlikely to be informed by the "wisdom" of Iranian and Saudi judges in cases involving women's or gay rights, or Chinese judges in death-penalty cases.


Are their arguments terribly persuasive to you? I mean, that's all that foreign legal norms can be -- persuasive

I am not completely sure, but if they result in putting Justice G in a burkha and sending her home (whether or not in a car driven by a man) i might want to be persuaded:)

bu seriously, you are confirming what Orin suggested - this using of foreign court 'precedent' is more for culture war purposes and not as help to interpret the US constitution.
4.13.2009 2:27pm
Steve:
I don't think I even know what the law of the sea treaty is, and as far as I know I haven't heard of any controversies about it. What are the controversies, Steve?

Well, Prof. Kerr, that is why you will never be a card-carrying member of the conservative base. Some critiques from the conservative side: here, here, and here.

Short version: the reasons are similar to the reasons why some conservatives oppose US recognition of the International Criminal Court. They don't want America to submit to some kind of global authority that operates by reference to "international values."
4.13.2009 2:34pm
einhverfr (mail) (www):

bu seriously, you are confirming what Orin suggested - this using of foreign court 'precedent' is more for culture war purposes and not as help to interpret the US constitution.


No, I think it is controversial and culture wars cases get more scrutiny.

I still don't hear anyone howling over Scalia's deference to foreign courts in Olympic Airways v Hussain..... If it were a case relating to the Convention against Torture, that would be one thing (culture wars), but if it is relating to the Warsaw Convention, it goes entirely unnoticed.
4.13.2009 2:44pm
martinned (mail) (www):

bu seriously, you are confirming what Orin suggested - this using of foreign court 'precedent' is more for culture war purposes and not as help to interpret the US constitution.

Can it really be said that a ruling like Lawrence interprets the constitution? Isn't it more honest to say that it interprets other rulings, which interpret yet other rulings, which maybe interpret the constitution itself? After all, that is how marriage became a constitutional issue in the US, because of the precedential value of Loving. There's nothing in the constitution itself about any right to marry. (Unlike the European Convention, which does explicitly address the issue.)

So why not use the common law method in US constitutional law? And citing out-of-jurisdiction case law is part and parcel of the common law method...
4.13.2009 2:50pm
Boblipton:
Steve, until we are signatory to any treaties, why should we be? While not wishing to destroy the planet, why should be assume that any foreign opinion, based in a legal and cultural matrix that differs significantly from ours, and which was made without consideration of our societal norms -- including common law, the Constitution and more than two hundred years of legislation -- is relevant to our system? By this logic, every car driver in this country should be jailed for driving on the wrong side of the road.

Bob
4.13.2009 2:57pm
PLR:
I take it that being unreasonably hypercritical is still chic these days?

I had intended to be cynical about certain academics, rather than [hyper]critical of a VC poster. My decision to kill most of a longer post was in error -- I should have killed all of it.

Sorry.
4.13.2009 3:01pm
Steve:
Steve, until we are signatory to any treaties, why should we be?

Why should we be what? Are you even talking to me? I don't think I've made a single normative argument in this thread.
4.13.2009 3:02pm
martinned (mail) (www):

By this logic, every car driver in this country should be jailed for driving on the wrong side of the road.

As it turns out, wiki has the answer even to that question.

Though originally most traffic drove on the left worldwide, today about 34% of the world's people live in left-hand traffic countries and 66% in right-hand traffic countries. About 28% of the world's total road distance carries traffic on the left, and 72% on the right.

Sorry, thank you for playing.
4.13.2009 3:02pm
runape (mail):
I think this is just right.
4.13.2009 3:14pm
Anderson (mail):
While not wishing to destroy the planet

LIBERAL!!!!
4.13.2009 3:16pm
cboldt (mail):
Olympic Airways v Husain is distinguishable from citing to foreign practices for support of a theory of constitutional application. Olympic Airways v Husain is an interpretation of the language of an international convention. The purpose of the Warsaw Convention is to facilitate international commerce, and as such, there is commercial value to having its terms construed in similar fashion throughout the signatories' individual spheres of power. More particularly, it aims to delimit and make predictable the power of individuals against common carriers that are engaged in international commerce.
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US Con law differs in that it aims [primarily] to define the limits of government power.
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IOW, there is good reason that reference to international interpretation of an international convention is unremarkable; and that Scalia's dissent in Olympic Airways v Husain isn't logically useful as justification to cite international law in interpreting the US Constitution.
4.13.2009 3:17pm
Simon Dodd (mail) (www):
AlleenSmithee, I wasn't aware that reports by the Chicago Council of Lawyers on judicial courtesy were central fronts in the culture wars. Good to know.

BABH said:
Prof Kerr has it right. It's a matter of basic intellectual honesty to give a citation when using someone else's idea or argument. To do otherwise is plagiarism, whether your source is Harold Koh or Muammar Gaddafi.
The problem is not one of intellectual honesty, an acknowledment by the judge that she or he thought a foreign opinion was persuasive, it is that the foreign opinion was persuasive. The citation isn't in itself the problem, but rather, the surface blemish that reflects the underlying malady. See Easterbrook, supra, at 226:
To the extent we are witnessing [in the citation of foreign law] nothing but the desire to add one more citation—and never mind the logic—it is no different from much of the rest of contemporary citation practice. The Wolfenden Report is much superior to most student notes in law reviews, which judges freely cite, and for that matter superior to many opinions of U.S. district and appellate judges that all too often are ghost written by fourth year law students. If a Justice is going to rely on secondary authority, why not pick the best? And judges who find other people's work persuasive should acknowledge their intellectual debt.

But citation practice may reveal a cast of mind, and this is the source of a genuine concern. All too many decisions, including Lawrence, Roper, and Atkins, start with the belief that the judiciary will flesh out vague rules. Since the Constitution itself is short and old, if the Justices are to produce thoughtful and wise resolutions they must have many sources to draw from, many experiments to monitor. Why not see how other nations have done things and assess whether these experiments have turned out well or poorly?

Notice the way I put this. I have assumed, as Justices often do, that (a) there is no answer to be found in the Constitution's own text and history, but (b) the judiciary must give an answer. When those conditions hold, people search far and wide. But when do those conditions hold? The answer should be "never."
4.13.2009 3:20pm
einhverfr (mail) (www):
cboltd:

My point was that Bernstein (and others) treats decisions on torture (also a matter of treaty law) and foreign cases in one way, but neglects to look at the way this occurs in other cases of treaty law.

The second question occurs normative facts (what is "cruel and unusual" in the States regarding punishment and does the majority have a stronger case because the rest of the world agrees with them?) and this is a different issue.

Is there any compelling reason to think the 8th Amendment was NOT understood to be normative when it was ratified?
4.13.2009 3:26pm
einhverfr (mail) (www):
Does anyone have ANY cases where non-treaty legal cases look to foreign courts to establish legal tests rather than matters of fact? I can't think of any. Am I wrong?

In the death penalty for minors issue, the issue was restricted to questions of fact. In Hamdan, it was a treaty issue and was limited to interpreting ratified treaties through a record that included non-ratified treaties. Can anyone point to a question where such a reference involved formulation of tests for non-treaty cases rather than matters of fact?
4.13.2009 3:38pm
cboldt (mail):
-- My point was that Bernstein (and others) treats decisions on torture (also a matter of treaty law) and foreign cases in one way, but neglects to look at the way this occurs in other cases of treaty law. --
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My point was that there is a logical reason for that difference in treatment. The US ratifications of Conventions on Torture (and other international conventions where terms similar to "cruel and unusual" may appear, e.g., Geneva Conventions) state that the Convention will be applied against the US in though the convention embodies the 8th amendment.
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There is no parallel to that (drawing in the US Constitution) in the Warsaw Convention. In part because the Warsaw convention defines rights between two private individuals in a contests (carrier and carried), whereas Conventions on War and Torture cover mutually agreed limits on government action. Ted Bundy didn't violate the a convention against torture.
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All the treaties eventually embody a normative judgement.
4.13.2009 3:42pm
Snaphappy:

I think the reason is that the Justices who favor citing foreign law have done so in a way that takes sides in the culture wars.


Wouldn't it be more accurate to say the reason is that the foreign law citations that conservatives despise have come in cases in which the Court has decided an issue that touches on the culture wars?

There is a difference. As pointed out above, Scalia "favor[s] citing foreign law" in some situations without an outcry from conservatives, and I recall similar citations from Rehnquist and other conservatives.
4.13.2009 3:42pm
AF:
In my experience, judicial opinions even in the mostly hotly political areas usually go out of their way to avoid associating with the culture wars. They normally take pains to emphasize that the decision is based on law, not public policy.

Perhaps, but conservative critics have not typically shied away from accusing liberal judges of taking sides in the culture wars.

Whatever the merits of that accusation, the implication of your post is that the foreign-law debate is just another iteration of that old debate and presents no special legitimacy concerns that weren't present, say, when the Warren Court sided with the civil rights movement in the culture wars of the 1950s and 60s.
4.13.2009 3:51pm
OrinKerr:
AF,

I don't see the implications that you see. Of course, maybe all conservatives look alike to you -- er, I mean, all conservative criticisms look alike to you -- but I think there some quite important distinctions here.
4.13.2009 4:02pm
OrinKerr:
I should add, AF, that some liberal critics have even accused the Supreme Court of taking sides in elections -- specifically, some critics have alleged that that the Supreme Court was not its usual neutral arbiter in the prominent case of Bush v. Gore (2000). But whether or not those accusations are valid, I'm discussing a different point: The power of rhetoric in opinions, not the results the Court reaches or the holdings of the cases.
4.13.2009 4:12pm
Simon Dodd (mail) (www):
SnapHappy:
As pointed out above, Scalia "favor[s] citing foreign law" in some situations without an outcry from conservatives, and I recall similar citations from Rehnquist and other conservatives.
Well, in some situations, foreign law is relevant to the decision. Treaty cases like Olympic Airways are an arguable example, but there are even more obvious cases than those. The TrafficStream BVI case is the exemplar that stands put in my mind: federal courts have diversity jurisdiction when one of the parties is a citizen of a foreign state, but suppose a party is a foreign corporation. To what law can you look but those of the foreign state to determine whether the corporation is a citizen of that state?
4.13.2009 4:16pm
Simon Dodd (mail) (www):
Sorry, stands out.
4.13.2009 4:18pm
martinned (mail) (www):

To what law can you look but those of the foreign state to determine whether the corporation is a citizen of that state?

How about the option of deciding corporations are never citizens, in the strictest sense, so all that matters is their country of incorporation and/or the country where they are headquartered?
4.13.2009 4:19pm
einhverfr (mail) (www):
cboltd:


My point was that there is a logical reason for that difference in treatment. The US ratifications of Conventions on Torture (and other international conventions where terms similar to "cruel and unusual" may appear, e.g., Geneva Conventions) state that the Convention will be applied against the US in though the convention embodies the 8th amendment.


But that is different from the ticking time bomb hypothetical that Ginsberg brings up. Arguably interrogation isn't punishment and therefore isn't per se governed by the 8th Amendment.
4.13.2009 4:25pm
AF:
Orin,

Not all conservative criticisms look alike to me, but the criticism that liberals are "taking sides in the culture wars" -- or making decisions based on "public policy" rather than "law" -- does strike me as a longstanding criticism that is not unique to the foreign-law debate.

To be sure, the fact that it is a longstanding criticism does not mean that it is (or is not) correct.

My point was not to take a side in the culture war jurisprudential debate about the role of culture or public policy in judicial decisionmaking, but rather to point out that your argument about foreign law seems to fit into that older debate.

In particular you seem to be downplaying the criticism made by some that seems most sharply and uniquely directed at foreign law -- that it is an illegitimate source of persuasive authority by virtue of being foreign.
4.13.2009 4:30pm
einhverfr (mail) (www):
The issue (which I think that OK is making) is that:

1) The controversial examples occur in controversial cases
2) The issue is the rhetorical impact of these citations rather than the legal impact

In this I am inclined to agree in both cases. Olympic Airways (where Thomas and Scalia arrived at VERY different conclusions because Thomas limited his analysis to the construction of the treaty, while Scalia looked at records of court opinions in other countries regarding the treaty) is a case which really embodies the legal impacts of this question clearly. However, none of the really controversial examples RELY on foreign courts or laws for their conclusions. At best these are additional citations designed to fortify conclusions which have been arrived at on other grounds.
4.13.2009 4:32pm
common sense (www):
How about when Scalia cites foreign law in interpreting the Constitution? McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). In dissent, Justice Scalia takes notice of foreign law. In arguing that there is no constitutional right to anonymous political speech, Justice Scalia states, "[w]e might also add to the list on the other side the legislatures of foriegn democracies: Australia, Canada, and England, for example, all have prohibitions upon anonymous campaigning."
4.13.2009 4:37pm
Simon P:
Orin,

What is the "culture war"? What does it mean to "take sides" in it? How do we know when a judge has "taken sides" in the "culture war"? I looked to your earlier post, but these crucial terms, loaded as they are with normative content, are nowhere defined. I think you're relying on them too much to make your point.

Stripped of vague, implicit references to the appropriate role of the judiciary, all your claim seems to be is: "Judges tend to be criticized when they make assertions that are outside the mainstream political discourse." That may be true, even useful, but it's unremarkable, and it's nothing that hasn't been said at least a hundred times before. And it doesn't tell us much about what's wrong with going outside that mainstream (or "taking sides," as you put it). We can include Dred Scott, Lochner, West Coast Hotel, Brown v. Board, Griswold, and on and on, as cases where the Supreme Court has "taken sides" in some "culture war" or another, but saying that doesn't tell us which of those cases were appropriate forays into "culture wars" and which ones weren't.

That's why, with respect to Bernstein's post about international law, your point is completely non-responsive. People who criticize the citation of foreign law in U.S. judicial decisions aren't making a veiled point about courts undermining their legitimacy as political institutions by venturing beyond the realm of their power, as understood by the governed. They're saying that foreign law has no place in domestic decisions, as a matter of principle. They say, as Bernstein did, that U.S. courts exist to interpret U.S. law for U.S. citizens, and not to attempt to bring us to some transnational judicially-governed order that is supposed to reflect transcendental human rights. The realist observation may be true, but it's beside the point. It does nothing to refute the claim the anti-foreign-law types are making.
4.13.2009 4:40pm
AF:
I'm discussing a different point: The power of rhetoric in opinions, not the results the Court reaches or the holdings of the cases.

Okay, I think I'm understanding it better now. Your point is not simply that liberals are taking sides in the culture wars, but that they are essentially rubbing it people's faces by relying on foreign persuasive authority, which their opponents do not find persuasive at all.

I take your point, but the fact remains that there are many other ways to take sides in the culture wars -- rhetorically as well as substantively. So I stand by my original point that your argument suggest there is nothing uniquely wrong with citing foreign law.
4.13.2009 4:43pm
cboldt (mail):
-- Arguably interrogation isn't punishment and therefore isn't per se governed by the 8th Amendment. --
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Likewise the Geneva Conventions don't prescribe limits on the treatment of prisoners on the basis of "punishment." Nonetheless, the US ratification specifically recites that the US will apply **its own** 8th amendment law if and when the US is called on to adjudicate a violation that arises under a Geneva Convention or under the UN Convention against Torture.
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I. The Senate's advice and consent is subject to the following reservations:
(1) That the United States considers itself bound by the obligation under article 16 to prevent 'cruel, inhuman or degrading treatment or punishment', only insofar as the term 'cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.
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http://www.unhchr.ch/html/menu3/b/treaty12_asp.htm
4.13.2009 4:47pm
KevinM:
OK, but -- Zen koans aside -- is it really fair to accuse one side of "taking sides"? To be sure, the foreign-law issue gets some traction in divisive cases, where the combatants will pick up any handy cudgel. But the foreign-law issue simpliciter also has its "culture war" aspect. Those who favor it are unpatriotic, elitist cosmopolitans -- not part of the "real America," and possibly even French. Obviously I'm kidding, and I'm not referring to what is a legitimate jurisprudential debate. Rather, I'm picking up on Oren's attempt to figure out why this somewhat abstruse dispute has political resonance.
4.13.2009 4:57pm
KevinM:
(Sorry about those cudgels with traction.)
4.13.2009 4:58pm
cboldt (mail):
-- Olympic Airways (where Thomas and Scalia arrived at VERY different conclusions because Thomas limited his analysis to the construction of the treaty, while Scalia looked at records of court opinions in other countries regarding the treaty) --
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Scalia also cited a number of SCOTUS ancestor opinions on the same international treaty, where SCOTUS viewed how other countries construed the same treaty language. The focus in the Olympia case was on the word "accident," and whether an airline failure to reseat a person who asserted allergies to tobacco smoke constituted an "accident" as that term is used in the Warsaw convention.
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The two justices arrived at OPPOSITE conclusions, with Scalia's criticism including 1) that in earlier SCOTUS cases deciding the construction of the Warsaw Convention, SCOTUS had reviewed other countries' construction of the Warsaw Convention and 2) application of the case law of other countries construing the term "accident" in the Warsaw Convention would not produce a finding of "accident" in this fact pattern.
4.13.2009 5:00pm
Simon Dodd (mail) (www):
martinned said:
How about the option of deciding corporations are never citizens, in the strictest sense, so all that matters is their country of incorporation and/or the country where they are headquartered?
And the authority of a federal court to grant or divest citizenship of another country comes from what source, precisely?
4.13.2009 5:04pm
Snaphappy:

Well, in some situations, foreign law is relevant to the decision. Treaty cases like Olympic Airways are an arguable example, but there are even more obvious cases than those.


Yes, one example might be a constitutional provision that asks what sort of punishment is "unusual"? Once you accept that the term has a contemporary meaning (which you do not have to use foreign law to do), looking to other jurisdictions is entirely relevant to decide what is "unusual." Yet this is one of the main examples cited against using foreign law.
4.13.2009 5:06pm
cboldt (mail):
-- How about when Scalia cites foreign law in interpreting the Constitution? McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). --
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That one looks like unnecessary roughness or piling on. Especially in context, after Scalia has examined historical prohibitions (in the US) against anonymous campaigning, and other SCOTUS decisions that upheld requirements for disseminators of campaign materials to identify themselves (e.g., requiring for broadcast advocacy, "This commercial endorsed and paid for by ...")
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The third and last question relevant to our decision is whether the prohibition of anonymous campaigning is effective in protecting and enhancing democratic elections. In answering this question no, the Justices of the majority set their own views - on a practical matter that bears closely upon the real-life experience of elected politicians and not upon that of unelected judges - up against the views of 49 (and perhaps all 50, see n. 4, supra) state legislatures and the federal Congress. We might also add to the list on the other side the legislatures of foreign democracies ...
4.13.2009 5:19pm
cboldt (mail):
-- However, none of the really controversial examples RELY on foreign courts or laws for their conclusions. --
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That's always going to the be the case, because foreign law has at most persuasive value. Olympic Airlines is an example of foreign courts having -NO- persuasive value, and where US law is contrary to foreign law by applying the term "accident" (as used in the Warsaw Convention) to a failure on the part of a flight crew to reseat a person who asserts allergy to tobacco smoke.
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At any rate, we sidewalk critics can view the persuasive force of opinions as though they lack reference to foreign experience, and reach conclusions as to how much persuasive force is lost in the transformation.
4.13.2009 5:37pm
D.R.M.:

Perhaps because the Constitution doesn't mention damages, so states are free to implement their own limits or lack thereof?

The Constitution doesn't mention age limits on executions, so states are free to implement their own limits or lack thereof?
4.13.2009 5:56pm
D.R.M.:
Something that's been missing from this discussion is a distinction between "foreign law" from "foreign interpretation of American law".

That is, the common law is American law, and the Warsaw Convention (per Article VI of the U.S. Constitution) is American law. In those sort of cases, a U.S. court applying a foreign court ruling is directly parallel to a Michigan court applying a case decided in Ohio on the basis of the common law or an identically-worded statute. Careful consideration must be given to the differences in overall legal environment, of course, but it's plausible to cite the out-of-jurisdiction case.

Contrast a judge in, say, Vermont, who looked at all the states that have passed state constitutional amendments against same-sex marriage in the last few years, and accordingly concluded that the Vermont constitution must thus implicitly include a prohibition on the same as a matter of standards of decency, and thus struck down the recent Vermont law allowing such marriages.
4.13.2009 6:32pm
einhverfr (mail) (www):
D.R.M:

In those sort of cases, a U.S. court applying a foreign court ruling is directly parallel to a Michigan court applying a case decided in Ohio on the basis of the common law or an identically-worded statute.


Wouldn't it be more like Michigan looking to a case decided in Ohio where both states AGREED to pass an identical statute in order to tackle a common problem?
4.13.2009 6:45pm
Therealpdiddy:
It's Lord Hobhouse of Woodborough. Tsk.
4.13.2009 7:13pm
Simon Dodd (mail) (www):
Snaphappy:
[O]ne example might be a constitutional provision that asks what sort of punishment is "unusual"? Once you accept that the term has a contemporary meaning ..., looking to other jurisdictions is entirely relevant to decide what is "unusual."
It isn't, actually, unless you first assume that the benchmark for evaluating "unusual" is "the entire world" or some subset of it, rather than just the United States. And why would we do that? Do we do the same thing with other clauses that might be argued to invite comparative analysis? For example: When we try to determine whether bail is excessive, should we ask how much bail other countries charge? Should we ask other countries how expeditiously they try criminals in determining whether a trial was speedy enough? When we want to know how much compensation is just, should we look to other countries and ask what they pay? After all, if they get to be a point of reference as to whether something is unusual, why not on whether it's too much or too slow?

I have no idea what other countries think about these questions, but I am fairly sure that if what other countries think about these questions tilts towards the liberal side, we can expect to see citations to those countries' courts, and that if they tilt the other way, we can expect to see the same silence that we saw in Hudson v. Michigan, for example, where the court's transnationalists had not a word to say about how the rest of the world handled the exclusionary rule.
4.13.2009 7:23pm
ReaderY:
Judges swear an oath to obey our instructions to them as we swear an oath as jurors to obey their instructions to us. Both sets of instructions ought to be interpreted with similar fidelity.

If fidelity means following after whoever happens to catch ones eye at the moment in the one case, it ought to mean it in the other. Judges are obviously no more the only sources of wisdom than the people. If cases are to be decided on wisdom, jurors ought to be as free as judges to look for it where they will. If one oath isn't violated, it's hard to see how the other could be.
4.13.2009 7:51pm
cboldt (mail):
-- Judges swear an oath to obey our instructions to them as we swear an oath as jurors to obey their instructions to us. Both sets of instructions ought to be interpreted with similar fidelity. --
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In some jurisdictions, the judge's instruction includes a statement that the juror is free to judge the [statutory/criminal] law, as well as to apply it. "We the people" have not, on the other hand, ever instructed our judges that they are free to disregard the Constitution.
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IOW, the notion that each set of players (judges and juries) are equivalently bound to "instructions" is detrimental to the principle that the people are the ultimate authority.
4.13.2009 8:31pm
cboldt (mail):
To add a point to my above comment, there are trade-offs and balances involved in permitting juries to nullify law vs. a desire that judges not abridge the constitution. Jury nullification is a fine-grained action, working only case-by-case. Judicial action, especially that of stating binding interpretive principle, can affect broad swaths of the population and culture.
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Point being that not only is there a in fact a difference between permitting juries to nullify law while abhoring judicial infidelity to instructions; there is justification for permitting jury nullification (the "damage" is limited to that case) while abhoring judicial infidelity (the "damage" is broader).
4.13.2009 8:37pm
OrinKerr:
AF:
I take your point, but the fact remains that there are many other ways to take sides in the culture wars -- rhetorically as well as substantively. So I stand by my original point that your argument suggest there is nothing uniquely wrong with citing foreign law.
I think this is just a question of level of generality. As a general matter, how many unique wrongs exist in the universe? 1? 1 million? I don't know how to categorize them, so it's hard to know the proper way to say something is "uniquely wrong" as compared to "wrong for the same or similar reasons as other things."

Therealpdiddy -- Ack, my apologies to his Lordship or whatever. (I should know this -- I put one of his cases in my casebook, and I always poke fun at his title.)
4.13.2009 9:21pm
einhverfr (mail) (www):
Simon Dodd:

It isn't, actually, unless you first assume that the benchmark for evaluating "unusual" is "the entire world" or some subset of it, rather than just the United States.


Well yes and no. I think that the way these arguments normally work is "most states abhor this practice so it is cruel and unusual. This is further supported by the vast majority of nations' views on this subject...." So I think that judges generally cite foreign laws and precedents outside of treaty cases as a feel-good measure to bolster their cases.
4.13.2009 9:45pm
AF:
As a general matter, how many unique wrongs exist in the universe? 1? 1 million? I don't know how to categorize them, so it's hard to know the proper way to say something is "uniquely wrong" as compared to "wrong for the same or similar reasons as other things."

Well, I take it that one of the primary criticisms of citing foreign law has been that it is not a legitimate source of persuasive authority because it is foreign. Your criticism, in contrast, doesn't seem to depend on the foreign-ness of foreign law. That's all I meant.
4.14.2009 9:37am
Larry Fafarman (mail) (www):
Justice Ginsburg said, "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?" Ironically, a dirty little secret is that law review articles are typically not peer-reviewed or even faculty-reviewed but are just student-reviewed! [1] Also, law reviews have been frequently cited by the courts -- the Harvard Law Review alone was cited 4410 times by the federal courts alone in the period 1970-79 alone -- though the frequency appears to have dropped off somewhat in recent years.[2] Ironically, peer review is often more beneficial in the law than in other scholarly fields because everything is easy to verify in the law -- in the sciences, for example, the peer-reviewer is often dependent on the accuracy of the reported experimental results. Also, because of the principles of stare decisis, res judicata, and collateral estoppel, the effects of errors or bad reasoning in law review articles tend to be permanent or long-lasting.
4.15.2009 3:53am

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