Wednesday, January 25, 2006

Roger Alford at Opinio Juris on lower court use of foreign law

Roger Alford at Opinio Juris makes an important point that most of us, me included, haven't really focused on in the debate over the use of foreign law in US courts - its use by lower courts and state courts. He notes that the Missouri Supreme Court appealed to foreign law in its opinion in Roper v Simmons, flagrantly ignoring then-controlling US Supreme Court precedent. I've noted in earlier posts that foreign law, unless checked by a newly constituted Supreme Court (and the fact that Roberts and Alito are both opposed does not really change the situation all that much, given that Kennedy, Stevens, Breyer, Souter, and Ginsburg are all on board), will become much more a feature in the lower courts than we now realize, through the press of litigation. But Roger Alford's post notes that it is already present more than I, at least, had really thought about. Here.

1 comment:

Roy Lofquist said...

Dear Sir,

The use of foreign law in US courts is a pernicious assault on our core princple of equal justice under the law.

Our legal system provides for an ordered process of resolving disputes. To this end professionals undergo intensive training and study to be able to represent their clients' interests. The overwhelming element in this is to present written law and precedent in support of those interests. The admissibility of foreign law shatters the degree of certainty that is vital to the system.

It is an arduous task to adequately understand the minutiae, thus the great degree of specialization. To allow foreign law is to throw wildcards into the process that can not be anticipated nor adequately prepared for.

It is a shibboleth and a doctrine that ignorance of the law is not a valid defense. If it is necessary that lawyers read 100 different languages and study 1,000 different legal systems to do their jobs then we have destroyed the system.