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Thursday, July 27, 2006

EV and PS on Foreign Law Clerks

Eugene Volokh has an interesting post on whether foreign citizens can serve as law clerks.  It is of special interest to some of us here at Prawfsblawg.  One of us is a Canadian with a US law degree who clerked for a federal judge; the other has a mixed Canadian-US legal education and likewise clerked in the States.  As I note somewhere in the comments section to Eugene's post, it's not just an import question; many graduates of US law schools have clerked for foreign courts, such as the Supreme Court of Canada and the Israeli Supreme Court.  I don't know whether all of those individuals were citizens of those countries.  Other examples, with reference to citizenship, are welcome in the comments.  Other commenters to Eugene's post have added various cautions about things would-be clerks in this situation should keep in mind; to those cautions I add my own in my comment on that page, about bar eligibility for foreign lawyers.

Peter Spiro adds his own two cents at Opinio Juris, tying it to his description of the erosion of domestic "citizen eligibility requirements."  He also says:

There is something odd about this, perhaps, at least in historical perspective. Why should someone with no necessary tie to the community be influencing U.S. constitutional law on an issue like abortion (and why is it relevant that the country in which the person holds citizenship has a defense treaty with the US)?

The second question in that paragraph is interesting, since most clerks hardly gain access to information that is especially closely tied to defense and so on.  Maybe someone else has an answer.  But isn't his first question somewhat overstated?  (I understand that it's tied to his broader point about citizen eligibility requirements, but still.)  First, if we're talking about US law degree holders, is it really accurate to characterize such individuals, who at the least have spent three years living in the US and steeping themselves in the US legal tradition, as having "no necessary tie to the community?"  Perhaps the word "necessary" is doing all the work here -- but should it?  Hasn't such a person voluntarily tied him- or herself to the community? Aren't such deliberate commitments to a country other than the country of one's birth often as meaningful, or more so, than the sometimes passive commitments of citizens by birth?

Moreover, doesn't the validity of his question depend at least in part on what we mean when we say that the foreign law clerk may "influenc[e] U.S. constitutional law?" Most judges are sufficiently independently minded, at least with regard to their law clerks, that they are not subject to serious influences of this sort.  The kinds of influences to which they are subject are both wholly proper and largely internal to the local interpretive community; that is, a law clerk may offer influential arguments, from within standard forms of U.S. legal reasoning, that a judge's reading of a particular case or line of cases is unsound, or that another line of doctrine is relevant to a case, and so on.  Although I appreciate Prof. Spiro's broader point, and one might ask why foreigners should be able to serve the United States in any capacity, I think the concern of "influence" is not that great.

Incidentally, the question Prof. Spiro asks has nothing to do with the ongoing debate over the use by US judges of foreign legal materials, although some might be tempted to draw a connection between the two.  A U.S. judge might instruct his American law clerks to consult foreign law; conversely, a U.S. judge might instruct his foreign law clerks only to consult American law.  Although the foreign law-clerk issue and the foreign law issue both sound in deeper questions of sovereignty, they are nevertheless distinct.   

Posted by Paul Horwitz on July 27, 2006 at 05:02 PM | Permalink

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Eugene Volokh has a post over at the Conspiracy on the eligibility of foreign citizens to serve as judicial law clerks. As he notes, many are, so long as they hail from a country with which the U.... [Read More]

Tracked on Jul 27, 2006 5:45:51 PM

Comments

Interesting. I just became a British citizen; does their argument apply to a native born American who retains his American citizenship but also has another citizenship? "Split-loyalties"? I just reviewed a contract that specified that in case of disputes, the chief of an arbitration panel could not be a Chinese national "or formerly a Chinese national." Fair or not? I think we'd all be offended if someone implied that we could not participate in another nation's discourse or could not be relied upon to make fair decisions simply because of our nationality (or by proxy ethnic background).

Posted by: Bart Motes | Jul 27, 2006 10:59:51 PM

I am an American citizen, but one of my 4 co-clerks when I clerked for a federal appellate judge was a British citizen. I must say that, at least at the appellate level, where there is substantial clerk interaction and discussion of the cases, it is incredibly valuable to have an "outsider" perspective in chambers. He brought a perspective to our discussions - particularly, with respect to international law - that a US citizen might not have been able to contribute. So, for what it's worth, I think it has been an incredibly valuable experience to clerk with a non-US citizen.

Posted by: Anon | Jul 28, 2006 9:56:27 AM

Frankly, I find it both disturbing and maddening that any non-U.S. citizen, with no demonstrated allegiance to the U.S. or the U.S. Constituion, can be a federal law clerk when there are thousands of willing and eager U.S. citizens applying for these same spots. (I know, I was one). This CERTAINLY isn't a job "Americans won't do."

In my internships at both NY state court and the SDNY I had to still pledge to uphold the Constitution. Could a non-U.S. citizen truly and in good faith take that oath?

Posted by: H. Tuttle | Jul 28, 2006 12:24:40 PM

Thanks, Tuttle. You also posted this comment on Volokh's post, and I've responded at undue length there. Interested readers -- all three of them -- may hoof it on over to Volokh's post if they want to read my response, and if they hate it they're always free to reply here.

Posted by: Paul Horwitz | Jul 28, 2006 12:53:15 PM

Tuttle, I wonder if your sense of upset is due to the purported lack of allegiance or b/c there were other Americans who wanted the job. FWIW, I did take the oath prior to clerking--and that should count as a demonstration of allegiance. Sadly, I wasn't given a better way to demonstrate such good faith. Had citizenship been offered to me as a prerequisite for the job, I would have obliged as well. As it turns out, I've since gone and married an American woman to demonstrate my bona fides--those of you who have met her would probably point out that other American men would have been willing to marry her as well. Life is unfair, I guess.

Posted by: Dan Markel | Jul 28, 2006 7:26:04 PM

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