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An Argument About Nothing

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On the issue of the citation of foreign law in United States Supreme Court opinions, I think this is the key passage in Adam Liptak’s recent article:

The controversy over the citation of foreign law in American courts is freighted with misconceptions. One is that the practice is somehow new or unusual. The other is that to cite such a decision is to be bound by it.

Even conservative scholars acknowledge that American judges have long cited decisions by foreign courts in their rulings. “The Supreme Court has been doing it for basically all of our history, and with some degree of gusto,” said Steven G. Calabresi, a law professor at Northwestern and a founder of the Federalist Society, a conservative legal group. Professor Calabresi said he generally opposed the citation of foreign law in constitutional cases.

Judicial citation or discussion of a foreign ruling does not, moreover, convert it into binding precedent.

So, first of all, the practice has been a banal one going back to at least the Marshall Court. And even more importantly — as even several of the conservatives working themselves into a foaming-at-the-mouth outrage about this banal practice seem to concede in the course of the article — the idea that references to foreign legal precedents actually affect Supreme Court holdings in any significant way is exceptionally implausible. Nobody’s vote in Roper would have changed if there was a norm against referring to the law in other nations. So who cares? In a nice article unfortunately not available for free online, Mark Tushnet correctly notes that this silly controversy is about the culture wars, not about law.

I think it’s also worth addressing this:

At their confirmation hearings, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. indicated that they were opposed to the citation of foreign law in constitutional cases. Chief Justice Roberts noted that foreign judges were not accountable to the American people and said that allowing the use of foreign precedent expanded judicial discretion.

“Foreign law, you can find anything you want,” Chief Justice Roberts said. “Looking at foreign law for support is like looking out over a crowd and picking out your friends.”

This argument (borrowed from Scalia) has the obvious problem that it’s equally applicable to any data source or method of interpretation. Certainly, it’s true of originalism: between the multiplicity of historical sources and the ability to define constitutional principles at different levels of abstraction a judge can virtually always identify friends which confirm her ex ante preferences, and in those rare occasions where this isn’t possible Scalia et al. will just ignore the evidence anyway. Scalia’s agrument that courts shouldn’t refer to legislative history has the same problems. Of course, legislative history can be misleading, but since this is true of any source of evidence it’s not clear why it’s useful to rely on a smaller number of potentially misleading sources of evidence.

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  • Foreigners cannot make arguments in the tried and true American manner. This is why they live in second-rate countries that are foreign.

  • wengler

    I can’t wait until they use the standard “14th amendment means you can’t have a recount” argument again.

  • Bubba is right. Don’t those foreign judges wear red robes and powdered wigs?
    Really, who could take anything those poofters say seriously?

  • Ironically, the NYT just carried an article about the declining influence of SCOTUS opinions in judicial circles around the world.
    As for “Scalia’s agrument [sic] that courts shouldn’t refer to legislative history,” that didn’t prevent him from piling on the legislative history in minute detail in his majority opinion in the D.C. v. Heller case on the 2nd Amendment.

  • Stuart Eugene Thiel

    The Illinois constitution, and I suspect many other state constitutions, explicitly provides that “the common law of England” as it stood on July 4, 1776 is legal precedent in state courts. It’s probably dead letter, now, but those old cases are still fun to cite.

  • LFC

    I don’t really agree that this controversy is about the culture wars rather than about law. The fact that citing foreign opinions doesn’t convert them into binding precedents does not mean that citing them is pointless; sometimes it’s helpful to see what courts in other countries are doing, particularly in a case such as the one involving the juvenile death penalty, where practices outside the U.S. are not irrelevant, at least if you believe the U.S. should not have been alone with Saudi Arabia and one or two other countries in allowing it. Also, this debate is at least partly about law and constitutional adjudication b/c it goes to the range and type of sources one should use. The fact that foreign opinions in themselves won’t determine an outcome or change votes doesn’t mean this has nothing to do with the law or attitudes toward it. Just b/c the Sup Ct has been citing foreign opinions since the Marshall Ct doesn’t mean it’s a “banal,” pointless, or trivial practice, and doesn’t mean that this is purely about the culture wars, unless you think everything is about the culture wars.

  • The Marshall Court?! Those hippies were the very definition of judicial activism.

  • drip

    So Roberts makes an analogy: iLooking at foreign law for support is like looking out over a crowd and picking out your friends.i And we judge you by the company you keep.
    What I really want to know is why would these guys resist a good idea just because it came from, say, 3d century BC Greece, or 5th century BC Palestine. Roberts isn’t even well educated enough to make his own argument properly.

  • What I really want to know is why would these guys resist a good idea just because it came from, say, 3d century BC Greece, or 5th century BC Palestine.
    It’s not actually required that they resist it but that people think they do.

  • The controversy over the citation of foreign law in American courts is freighted with misconceptions.
    What’s wrong with “fraught”? Has the Times become so terrified of being labeled elitist?

  • rea

    I think it’s outrageous that so many American courts follow rules of contract consequential damages laid down by an English court in 1854! Hadley v Baxendale, 9 Exch 341; 156 Eng Rep 145 (1854).
    http://en.wikipedia.org/wiki/Hadley_v._Baxendale
    Are there no patriots left? Does not loyalty to the United States require us to allow recovery of lost profits even in the absence of special circumstances?

  • “…doesn’t mean that this is purely about the culture wars, unless you think everything is about the culture wars.”
    Seems to me that this phony controversy is just one of an infinite number of variations on the theme of American exceptionalism.
    In 2004, two (naturally) Repub members of Congress introduced a resolution forbidding judges to “substitute” foreign law for U.S. law, on pain of impeachment. All for “the protection U.S. sovereignty,” of course.

  • Hear, hear. George Washington and Abraham Lincoln didn’t lead America into war after George III bombed Pearl Harbor only to see Americans groan beneath the yoke of the rule against perpetuities.
    I heard Judge Berman of the SDNY speak today on this very topic, and about Scalia in particular. I would swear that Berman thought Scalia a bit of a twat about this issue, were Berman not far too judicious to allow me to form such an impression. To be fair, he did seem appreciative that Scalia was the fifth vote vindicating him in the wine case.

  • iForeign law, you can find anything you want,i Chief Justice Roberts said. iLooking at foreign law for support is like looking out over a crowd and picking out your friends.i.
    He has a point. Of course, the exact same thing can be said about the biblical inerrantists. The more they rant about how closely they follow the Bible, the more you can be sure they have been highly selective about exactly which parts of the Bible they chose to follow. The original intent people are the same way.

  • serge

    I love this…”Chief Justice Roberts noted that foreign judges were not accountable to the American people…” Hell, the US Supreme Court is not accountable to the American people.
    Of the manifold excesses of the Bush devastation, I think that Roberts and Alito rank near, if not at, the top.

  • The Crafty Trilobite

    If Roberts hadn’t spent so much of his time in federal appellate practice, he might realize that the use of foreign sources is not exactly novel in American law. State courts use “foreign” law constantly. That is, they consider opinions of other states as persuasive, though not binding, authority. As any state-court litigator knows, the most persuasive out-of-state authority is from states with a similar culture (i.e., neighboring), and similar laws and other characteristics relevant to the issue. For example, in Washington, California law is usually good. Arizona law is probably not, especially if the issue in the case relates to, for example, building codes and standards, because the climates are so dissimilar. In Maryland, choose Pennsylvania, not Alaska. And so forth. And be prepared to explain why your opponent’s out-of-state citation is inapplicable given that your state and that state have opposite doctrines on a relevant point, or because the solution makes no sense in your state’s economy — but the judge probably already knows that.
    In short, competent lawyers and judges understand the limits of foreign law. They use it to be sure the court is not heading out into completely uncharted territory. It is useful to know that someone has looked at the question and found a solution. There is absolutely no reason federal judges cannot make the same sort of intelligent use of extraforum law. True, they lack experience, but they’re fairly bright and can keep up if they try. :)

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