Powerline reaction to Scalia-Breyer debate on foreign law in US courts

Powerline, picked up by Instapundit and many other blogs, has a very critical take on Justice Breyer's comments in the the debate between Justice Scalia and Justice Breyer at American University Law School on foreign law in US courts, here. Hindrocket's comments come out of the AP story on yesterday's debate - you can go directly to the CSPAN site or go to the law school website, here, to link to the archived video feed of the entire event. The law school website, here, will have a full written transcription of the event by the end of next week, which should be welcome news to scholars and others. I have posted a discussion on this blog of why the issue of foreign law in US courts is so important - Powerline is absolutely right about that - beginning here. (You can find Ann Althouse's TiVo blogging of the event here and her pickup of news of the event in the press here.)

I was one of the organizers of the Scalia-Breyer debate - I'm a law prof at AU law school - and although the AP quote was, so far as I could tell, accurate, it was taken sharply out of context. Justice Breyer was speaking in a very specific exchange with Justice Scalia about the narrowly judicial act of interpreting legal texts, and it is quite unfair to take that remark about who participates directly in the process of interpreting legal texts that have already been informed by constitutional and legislative and other democratic institutions - judges, lawyers, law students (and it was obvious to the live audience that he included students as a courtesy to the audience of law students) - as being somehow antidemocratic. He was just noting the fact that legal materials, once they have been created through various democratic mechanisms, then become subject to interpretation by the interactions of lawyers and judges. It was nothing more insidious than that. A much better summary of the event is in Charles Lane's Friday front-page Washington Post article.

I yield to no one - not even Hindrocket - in my opposition to the drawing of foreign law into US constitutional adjudication. I have a long multi-post discussion on this blog outlining the issues and critiquing Justice Breyer's views, beginning here. I have a Harvard Law Review piece coming out in February that severely criticizes Justice Breyer's position, and asking him, among other things, why, if he is willing to cite cool, progressive European law, he does not also cite Shari'a law - for example, on how many female witnesses are needed to contradict male testimony, or on whether it is required to stone gays to death. If the point is that American jurisprudence ought to take account of global trends in law, how, without hypocrisy, do you limit it to those views that just happen to be congenial with the sympathies of a progressive, Europhile US judge? Isn't it hypocritical not to take account of what is arguably the much more global movement in law, the movement toward Islamization of law in many places from Aceh, Indonesia to large parts of Nigeria? Isn't taking account of all that stuff, and not just what one's friends in Western Europe say, equally required in order to have a "decent respect" for the opinions of mankind outside our own country? I have zero sympathy for Justice Breyer's position on this, and think it an erosion not precisely of American sovereignty, but of American democracy, for which sovereignty - what Lincoln called "a political community, without a political superior"- is its bulwark and defense.

The issue is not a decent respect for others' opinions in the wide world, but instead fidelity to a particular political community, the relations of whose members are constituted literally by a constitution, by a compact among themselves, and who give power over to unelected judges not in order that they draw upon the opinions of people at large in the world, however worthy or wise their thoughts might be, but to draw upon sources that have democratic provenance and legitimacy from within this particular democratic political community, because their interpretation by judges must be and properly is undemocratic. The price of being permitted the undemocratic, countermajoritarian act of judging in a democracy is that the materials one brings to the interpretive table must be materials which arise from within the constitutional and democratic processes of that political community - those which are accountable, through the legislative and other democratic processes, to the democratic political community.

That said, however, the particular comment that Powerline zooms in on from the AP is taken out of context and quite unfair to Justice Breyer.

Justice Breyer's real problem in the debate showed in his repeated assertion that this was not a big deal, it was no different from citing Blackstone or other extrajudicial materials - Shakespeare, the Bible, whatever. His answer to his critics who rightly wonder where the practice stops is disturbingly and, I would say, entirely ad hoc. Judges who are properly doing their job will only cite foreign law in rare and appropriate cases - and it is easy to guess what Justice Scalia did with that. As in many opinions of the Breyer-Souter wing of the Court - the Sosa case, for example, supposedly reining in the rampant use of the Alien Tort Statute - Justice Breyer seems to think that good judicial sense can find the right balance, and so there is no call to create hard and fast rules for lower courts. It ignores completely how litigation actually works - lawyers who perceive that foreign law is now fair game will start citing it, judges will note that it is at least partly accepted by higher courts and will begin responding to it, not by ruling it out of court, but on a substantive basis, and within a few years it has become standard practice to cite foreign law. Lawyers won't not be able to cite it and judges won't be able to ignore it. It will just evolve into an accepted, indeed required, practice unless there is a clear rule from the top down.

It was striking to me, however, how many of the professors I talked with after the debate, who despise Scalia and substantively think the entire world should have a kind of common global jurisprudence, thought that Scalia gave much the stronger argument.

I will have more to say on the debate and its implications later.

(Update, Friday, January 14, 2005: I've made some minor grammatical edits.)

(Update, Friday, January 14, 2005: In addition to Charles Lane's outstanding Washington Post account in today's paper, see also the MSNBC story, here.)

(Update, Saturday, January 15, 2005: Full written transcript of the debate available here.)