What's the big deal about foreign law in US courts? Part 1

(Update, Sunday, January 2, 2005: Due to formatting problems that caused my sidebar to drop to the bottom of the page, I am reposting this very long discussion of the issue of foreign law in US courts broken up into smaller chunks as separate posts. There was a thoughtful comment left by Anonymous that I hope will not disappear, but if it does I'll try to summarize it and respond.)

(This whole series of posts is in anticipation of the debate between Justices Scalia and Breyer on this topic, on Thursday, January 13, 4-5:30 pm est - at my law school, American University, DC, you can register to attend in person at the "Events" page at the law school website here, and after January 10, you can find information at the same law school website if you want to follow the livestream over the web.)

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(I am drawing here out of my notes for a forthcoming essay on liberal internationalism and democratic sovereignty, in the February 2004 Harvard Law Review. Apologies that the footnote numbers in the text don't seem to take you to the notes - they are found at the end of the last post in this series - or anyway, so I hope!)

A debate is slowly widening among members of the US Supreme Court over the question of whether, and to what extent, it is appropriate to cite and use as authority constitutional law cases from other legal systems, from legal systems outside the United States. Justice Breyer, in particular, has been doing so in some of his recent dissenting opinions, and Justices Scalia and Thomas have been sharply critical of his doing so. The cases in which such foreign cases have been offered have been, not insignificantly, so-called "values" cases - death penalty and gay rights cases, among others. It appears to some observers that some of the justices are seeking, in foreign jurisprudence, a source of legitimacy and authority not otherwise available through ordinary US constitutional jurisprudence and, especially in cases involving gut reactions about moral values rather than technicalities of law. This has occasioned both strong enthusiasm for the practice as well as sharp criticism.

My own view, as will come clear below, is that the whole practice is misconceived as to the nature of the US constitutional system and its democratic compact with its citizens. However, let us start by trying to give a summary of the positions (I am relying extensively here on Anne-Marie Slaughter's outstanding new book, A New World Order (Princeton 2004).)

On the one side, for example, is Justice Breyer, reviewing in his dissent in Knight v. Florida several foreign judicial precedents on the ground that, although such precedents were not binding, the willingness to “consider foreign judicial views in comparable cases is not surprising in a nation that from its birth has given a ‘decent respect to the opinions of mankind’.”[1] Breyer’s claim is put modestly in another dissent, this time in U.S. v. Printz; it is only that the experience of foreign courts may “cast an empirical light on the consequences of different solutions to a common legal problem.”[2] This view is seconded by Justice Ginsburg, arguing that many legal problems, such as discrimination and prejudice, are global, and that “experience in one nation or region may inspire or inform other nations or regions.”[3] Justice O’Connor has similarly remarked that although international law and the law of other nations are “rarely binding on our decisions in U.S. courts, conclusions reached by other countries and by the international community should at times constitute persuasive authority in American courts.”[4] And quite recently Justice Kennedy took note of European jurisprudence in his opinion in Lawrence v. Texas.[5]

Of course, these citations may simply be thought platitudinous – Justice O’Connor was speaking, after all, as keynote speaker to the American Society of International Law; one would scarcely expect her to spit in her audience’s eye. Although Justice Scalia might have spoken his well-known mind on the place of foreign law in US courts, what Justice O’Connor said might be taken as little more than the pieties about international cooperation and comity that one expects important officials to express on such occasions, sincerely but without practical consequences for the content of US judicial process. Even Chief Justice Rehnquist has called upon all US judges to participate in judicial exchanges, on the ground that “it is important for judges and legal communities of different nations to exchange views, share information and learn to better understand one another and our legal systems.”[6] Yet there is little to indicate that the Chief Justice understands this as anything other than simply cultural interchange, if that – not an avenue into the US courts.

However, one might think that, beneath the platitudinous invocations of good will, cooperation, friendship, and such talk that has characterized interchanges across cultural and national line since diplomacy first came to be, in fact lies a deeper agenda which the surface words belie. Justice Breyer may soothingly say in his dissents that merely considering such views, in the same that one might read the law reviews, absorbing ideas and new concepts just as with other information, raises no novel question of precedent and legitimacy. Judges have long rhetorically bolstered their opinions with citations and quotations from ancient common law, Blackstone, Bartlett's book of quotations, the Bible, Shakespeare, poetry - why should this be any different? Given the trajectory of Justice Breyer's thought, however, one might at least wonder whether he understates his actual commitment, over time at least, to a much more robust role for foreign precedent in US courts that goes far beyond the merely rhetorical function of these other traditional forms of non-case-law citation.

(Update. Go to the continuation at post 2, here. Go to the continuation at post 3, here. Go to the continuation at post 4, here. Go to the continuation at post 5, here.)

(Please bear in mind that this is an informal discussion, drawn from notes, and I have still not had time to correct the citations in the footnotes, so do not write your term paper or next article relying in the cites.)