Sunday, January 02, 2005

What's the big deal about foreign law in US courts? Part 5 (Endnotes)

(Update, Monday, January 3, 2005: I've noticed that some of these notes are screwed up and incomplete. The sources all exist, but the citations aren't completely right. Don't write your law review note or term paper based on them; I'll try to go back through and fix them in the next couple of days, and I'll update when I do.)


1. Knight v. Florida, 528 U.S. 990, at 997.
2. U.S. v. Printz, 521 U.S. 898, 977.
3. Ruth Bader Ginsburg, “Affirmative Action as in International Human Rights Dialogue,” 18 Brookings Review (2000) at 3.
4. Sandra Day O’Connor, keynote address, American Society of International Proceedings, 350.
5. Lawrence v. Texas, 539 U.S. 538, 572 (citing the European Court of Human Rights).
6. William Rehnquist, Remarks of the Chief Justice, Court of Appeals for the Federal Circuit Twentieth Anniversary Judicial Conference, 8 April 2002, on the Supreme Court homepage.
7. Knight v. Florida, 528 US 990.
8. P. 227, citing Yash Ghai, “Sentinels of Liberty or Sheep in Wolf’s Clothing? Judicial Politics and the Hong Kong Bill of Rights,” 60 Modern Law Review 459 (1997), at 479, 507.
9. Thompson v. Oklahoma, 487 U.S. 815, 8679 (1988).
10. U.S. v. Printz, at 921 (emphasis added).
11. The most important discussion of this whole matter remains Jed Rubenfeld, “The Two World Orders,” Wilson Quarterly (Autumn 2003), at 22. He concludes that the “unfortunate reality, however, is that international law is a threat to democracy and to the hopes of democratic politics all over the world.” At 34.
12. Charles Fried, “Scholars and Judges: Reason and Power” at 818.
13. Jed Rubenfeld, at 25.
14. Jed Rubenfeld, at 29.
15. Jed Rubenfeld, at 29.
16. I address the quasi-religious overtones of these discussions in Kenneth Anderson, “Secular Eschatologies of the Internationalized New Class,” in Peter Juviler and Carrie Gustafson, eds., Religion and Human Rights: Competing Claims? (ME Sharpe 1998).
17. This is not support for any current efforts to strip Federal courts of jurisdiction in domestic matters; I think those are all quite wrong. I confine this view solely to the case of using the Federal courts to draw into US constitutional jurisprudence a body of materials that have no cognate in this country’s democratic constitutional order – no rootedness, as Rubenfeld says, in popular democratic sovereignty. In that case, the extraordinary reassertion of democratic sovereignty by the elected branches of government would seem to me justified.


Anonymous said...

The criticism, particularly in the _Lawrence_ case, of citing to foreign law seems a little overwraught. Where was the criticism of Berger's concurrence in _Bowers v. Hardwick_, the case overruled by _Lawrence_? Citing foreign law in a case overruling a case which cited foreign law hardely seems suprising. You recall Berger wrote in his concurrence in Bowers (in support of anti-sodomy statutes) as follows:

"....Condemnation of those practices [homosexual conduct] is firmly rooted in Judeao-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. See Code Theod. 9.7.6; Code Just. 9.9.31. See also D. Bailey, Homosexuality [478 U.S. 186, 197] and the Western Christian Tradition 70-81 (1975). During the English Reformation when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed. 25 Hen. VIII, ch. 6. Blackstone described "the infamous crime against nature" as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not fit to be named." 4 W. Blackstone, Commentaries *215. The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies."

While the common law of England may be good precedent for the former colonies that are now the USA, that hardly applies to citations to Roman law which eventually became the law in continental Europe.

KA said...

This is an important comment, and a point well taken. Paraphrased, haven't judges for centuries been citing for rhetorical emphasis all sorts of extraneous materials - the Bible, Shakespeare, Bartlett's book of quotations, poetry, Roman law, Blackstone's Commentaries, ancient common law, cute phrases in Latin? How is it so different to be citing foreign cases? In general, I distinguish between citing foreign cases and citing cases that do form part of the continuous tradition of the US Constitution - the historical common law of England, for example, that was formative to the US Constitution and its lawyer drafters. The other literary stuff, precisely because it is literary, is easily understood by everyone to be rhetorical. It is different when you cite a case, however, because even if you say it is not binding authority, it stands in a completely different category than citing Shakespeare. With respect to the sodomy cases - well, I thought the whole inquiry into our long traditions, etc., was completely offpoint - the citations of law in those cases, however, from however far-fetched (to my mind) the sources, I did not understand as legal citations but as evidence of a certain moral and civilizational tradition. But there is a deep ambuiguity there, and I am not wild about the practice at all.

Anonymous said...

This is adifferent "Anonymous". I just wanted to point out that I also saw Berger's citations are refering not to any legal precedent, but rather as buttressing his statement as to societal norms. He's not relying on them as authority for any legal position. It's rather different than Breyer's citation for that reason. Still, I too would rather see an end to all of it.