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Wednesday, June 15, 2005

Citing Foreign Law in Judicial Opinions: Which Countries Count?


There has been much debate over the citation of foreign law in judicial opinions, especially recent Supreme Court opinions such as Lawrence v. Texas and Roper v. Simmons.  For some arguments in this debate, see Judge Richard Posner (con); Vicki Jackson (pro); and Orin Kerr (con). Much of the debate has centered on the appropriateness of such citation.  An Economist article on the topic states:

Conservatives have been further inflamed by the increasing frequency of Supreme Court references to foreign laws and opinions. Tom DeLay, the House majority leader, recently lambasted Justice Anthony Kennedy for his “incredibly outrageous” citation of international views in the court's ruling outlawing the death penalty for juvenile killers.

Republicans have now introduced a resolution in Congress banning inappropriate reliance on foreign laws or judgments in interpreting the constitution. Although almost certainly a violation of the separation of powers, it has already attracted a lot of support.

A fascinating recent law review article by Rex Glensy, Which Countries Count? Lawrence v. Texas and the Selection of Foreign Persuasive Authority, supports the citation of foreign authority, and it focuses on addressing an extremely important issue: When citing foreign authority, which countries should be cited? Why not look to China, for example?  From the abstract:

This Article provides a selection process for foreign persuasive authority within the context of comparative analysis. In Lawrence v. Texas, the Supreme Court struck down as unconstitutional a state statute relying, in part, on select foreign sources of authority. Recent scholarship has attacked the Lawrence Court's use of foreign authority, and in particular, its apparent self-serving and biased penchant for preferring materials from Western democracies at the expense of all other countries. This Article responds to that charge.

This Article argues that by combining the results of an historical analysis of the use of foreign authority with modern trends in social sciences and legal scholarship, it is possible to construct a framework within which the selection of appropriate foreign materials for comparative analysis by U.S. courts can operate. First, this Article traces the history of comparative analysis in the United States and, describing its normative impulse, illustrates that the ethos of comparative law in this country has always been one of informed nation selection.

Based upon this notion, this Article then presents a tri-partite framework in which the selection of foreign persuasive authority can take place: a framework which, depending on the specific context of the case, combines the democratic credentials of the originating country with such country's societal affinities to the United States. This Article concludes by showing that the Lawrence majority's selections complied with this framework, thus demonstrating that a cohesive and principled process lay behind the Court's particular choices of foreign persuasive authority.

Posted by Daniel Solove on June 15, 2005 at 03:10 AM in Article Spotlight, Constitutional thoughts, Daniel Solove | Permalink


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James: you're making a distinction without a difference. There's three possible states that a document can be in, relative to a supreme court decision:

1. Command: the Supreme Court must follow this document or find a higher command that tells it not to do so. This is "binding authority." There are four identifiable categories, in order of power: the Constitution, an act of Congress, a treaty, and prior Supreme Court precedent. There's also a fifth category in cases implicating state law, but since the Supreme Court doesn't take cert on cases that are decided on an "adequate and independent state ground," and rarely reviews federal decisions about state law, this is functionally meaningless. There's a sixth semi-category which encompasses findings of fact and exercises of discretion from lower courts in the same matter that are entitled to deference (or res judicata/collatteral estoppel decisions), but, once again, not usually an issue in the Supreme Court.

2. Persuasion: the Supreme Court might concievably choose to find this document relevant to the question it is determining. This includes circuit court decisions: often, the Supreme Court will cite any number of circuit court decisions in support of the proposition that what it is saying is uncontroversial. This also includes medical judgments (Roe v. Wade), legislative history, philosophy, the bible, law review articles, treatises, restatements, and foreign law. This also includes the briefs of the parties and oral argument. All of these things have been cited in opinions. The common factor that each of those things shares is that it may make A RELEVANT ARGUMENT, or identify A VALUE TO BE CONSIDERED by the court, but that the court NEED NOT accept such arguments or values.

3. Non-persuasive authority: this includes those things that are completely irrelevant to the legal question to be determined. The latest Tom Clancy novel, a tarot reading, or the fact that the Justice in question really hates appellant's counsel.

So there's category (1), which represents obedience, category (2), which represents persuasion, and category (3) which represents irrelevance.

What basis is there for subdividing category (2) any further? Your integralness-to-the-law concept is really rather incoherent. A treatise is integral to the law, but Rawls isn't? How about Locke? After all, the founders were sorta adherents to Locke. Is Locke integral to the law? If treatises are inherent to the law, are law review articles? If law review articles are, how about the several U.S. law review articles written by Habermas, a great foreign philosopher? If Habermas's articles are integral to the law, how about his books? And if his books, how about Rawls's books? Is it only doctrinal law review articles? What about if Larry Tribe's treatise (clearly "legal" I assume) cites Rawls? What about philosophy of law? Which of these things are "legal" and what principled basis do you have for drawing the line?

I mean, do I actually need to break out the deconstructive techniques here? Or do you see that your distinction between materials that do not exercise force (via speech acts) on the Court but are "legal" and those that do not exercise force on the Court but are "not legal" is entirely a product of your imagination?

Posted by: Paul Gowder | Jun 17, 2005 5:05:30 PM


We need to distinguish the concept of "authority" with that of "persuasion."

I respectfully disagree that artists such as Shakespeare or Kafka or philosophers such as Rawls constitute an aspect of "legal authority." I agree they may be enjoyable to read, and they may even be persuasive as to their insights into human nature, but they simply are not aspects of legal authority in themselves. Perhaps if a statute specifically references an artist as a source of authority for the law, then one may usefully say that the referenced source constitutes one legal authority for the purpose of interpreting that law. Aside from such an instance, works of art and philosophy simply do not constitute sources of legal authority. That is not to say that a clever lawyer should avoid citing to great works of literature or philosophy, but even if it is persuasive, it is still not legal.

On the other hand, certain treatises, including the various restatements, as well as lower court decisions and founding documents are obviously sources of "legal authority" because they represent judicial decisions, attempts to synthesize judicial opinion, or are otherwise integral to the law itself.

I am a bit confused as to why you conflate the concept of persuasive material (such as Shakespeare) from legal authority (such as a lower court decision). This is not to suggest that courts should be barred from citing Shakespeare, but the point of my earlier comment was to demonstrate that, to the casual and even professional reader, a citation to foreign law may seem more authoritative than Shakespeare and yet it may be no more authoritative in actuality. Shakespeare is not a source of legal authority, nor is a foreign law.

By the way, from you last comment regarding the use of common law, I hope you realize that the First Congress specifically incorporated the Common Law as it existed at that time into the laws of the United States.

Posted by: James | Jun 17, 2005 4:16:24 PM

Simon, thank you for that response. It is cogent and a valid rejoinder to my criticism. I am running short on time, so I will try to post a response later tonight.

Posted by: Joel | Jun 17, 2005 9:07:49 AM

Simon: are justices allowed to cite to any other secondary sources? Yes or no?


(1) Law review articles that have not been adopted by Congress?

(2) Philosophical works that have not been adopted by Congress?

(3) Treatises that have not been adopted by Congress?

(And lets not even forget the fact that we come from a common-law tradition where much of the most important day-to-day law is not adopted by any legislature)

Posted by: Paul Gowder | Jun 17, 2005 12:06:47 AM

Respectfully, I don't buy that it's a different topic; in fact, I think it's very intimately tied to the correct theory of constitutional interpretation. Justice Scalia has entirely adequately covered this ground, in my view, most concisely in the recent Breyer/O'Connor/Scalia National Archives interview aired on C-SPAN, but more expansively in the American University colloquy (transcript) with Justice Breyer.

Whether international law should be cited at the Supreme Court depends entirely upon how you view the function of the Court, which is to say, it's a function of how you should intrepret the Constitution. If you think that the constitution should be interpreted according to its original understanding (and I contend there is no other, valid method; q.v. Randy Barnett, Originalism for Non-originalists, 45 Loy. L. Rev 611, and H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885, which demolished Judge Bork's original intent originalism, but only at the cost of mortally wounding objections to Justice Scalia's original understanding originalism), then obviously, foreign law subsequent to ratification is irrelevant. If you believe in the evolving standards of decency of American Society (q.v. Trop v. Dulles), what does foreign law tell you about the standards of decency that have yet evolved in America? A quick examination of how many non-American movies are playing at your local theater, or how many stories about Japanese culture are on the television news, or the distribution of the British pop culture magazine Heat in the United States, or even how many Americans have passports, should tell us just how much the culture of modern Greece has on American attitudes. Which is to say, not much.

So if you're an originalist, foreign law is irrelevant. And if you're a fan of the living constitution, foreign law is irrelevant. The only way foreign law is relevant is if you believe that it is the job of a Supreme Court justice to tell America what the constitution OUGHT to say. If you think the job of a Justice is to attempt to wring from the text what you think is the best possible answer, as a platonic guardian of the best of America, then obviously you will want to look to what other platonic guardians in other countries think. But I say that the first clause of the first section of the first article of the Constitution reserved the right to legislate to the Congress, and the process of amending the constitution was placed in Article V not article III.

Incidentally, there is another interpretation of the enthusiasm for using foreign law which is less flattering; over at ACSblog, Professor Michael Kelly, who's a professor of International and Comparitative Law, posted two articles (which Prof. Kerr over at Volokh Conspiracy fairly roundly obliterated) attacking opponents of the use of foreign law. But of course, Prof. Kelly is hardly a neutral observer; as one wag pointed out - in less kind words than these - the more use for foreign law, the more job openings for people with qualifications in international law.

You may, of course, be right to say that opinions have not generally relied on it, and a case in which the majority opinion merely comments on foreign law is not inherently wrongly decided, but any opinion which rests squarely on foreign law (other than treaties to which the US is actually a party, Justice Ginsburg) is inherently and necessarily void. Even if current use of Foreign law are currently just "meaningless dicta", they must be arrested and expunged before the mentality takes hold that what is acceptable today in dicta might tommorow form a reasonable part of constitutional jurisprudence, for - in my view, at least - it can never be any such thing.

So I reject the idea that the merits of originalism, or systems of constitutional theory, are in any way a separate discussion to whether or not foreign law is relevant to constitutional discourse. I think they are very much joined at the hip. Justice Breyer's blithe assertion that "we might learn something" strikes me as proverbially silly; we "might learn something" from an automobile repair class, from foreign law, or from a debate of the laws of the Romulan Star Empire, but none of these are relevant to the task of the court, which is in determining how the Constitution was originally understood at the time of ratification, and applying that understanding to the case or controversy at hand.

Posted by: Simon | Jun 16, 2005 10:40:19 PM

Simon, you are conflating a different topic with the question of international law citations. There are other threads where the question or originalism and the proper theories under which the Constitution is interpreted can be discussed. As such, I am going to leave commenting on the majority of your post until later.

As I have been saying above, the use of a foreign citation does not mean that we are looking at an abdication of rights and responsibilities under our own system of jurisprudence. I am baffled by the assumption that United States Supreme Court Justices are fools that seems to be underpinning a lot of the counterarguments I have been seeing. It is a secondary, non-binding, persuasive authority. How persuasive it is depends on the reader. Myself, I have a big problem with a large portion of the law and economics theory law reviews when recent research into the psychology of risk & decision making has proven some underlying assumptions by those scholars wrong. You may find the idea of looking to what France or Spain did with a problem equally unpersuasive. Fine.

James, To respond to an earlier point you make, I think Shakespeare may have more relevance to some legal questions than certain foreign jurisprudential materials, but we can save the discussion of "Measure for Measure" for later. Why are certain countries picked over others? The shared history of western european cultures certainly plays some part. Your support of impeachment rings hollow, though. First, I'm not getting into originalism vs. the rest of the world on this thread. No threadjacking. Second, persuasive authority is persuasive authority is persuasive authority. Are you advancing the theory that a law is only a law if it is enforced? If there is a punishment meted out? Is a crime still a crime if the perp has not been apprehended? I think the answer to the latter is yes. A crime is a crime and a law is a law absent any form of reciprical action. The question of enforcement of the law is a seperate question from what the law says and what it tells us.

Paul, I think you've got what I was saying about persuasive authority. I may dislike the results and the citations in some opinions, but that is not justification to say those citations are wrong. Hey, PrawfsBlawg sysops ... A thread on Article IV of the US Constitution relating to International Law could be fun ... even if I can only make it by once a day now.

Posted by: Joel | Jun 16, 2005 9:21:00 PM

The intent of the framers, it seems to me, was to secure freedom from tyranny. the manner in which they did this was to create a government in which it was difficult for laws to be imposed, and impossible for laws to be proposed with the consent of the governed. This was achieved in three ways. Firstly, the constitution was required to be ratified, by the duly-appointed proxies of the people. Secondly, the laws made under authority granted by the Constitution were required to be passed by the House of Representatives, which was to be responsible to the people by way of frequent elections. Lastly, the amendment of the Constitution was subject to the ratification of the people.

In this manner, the governed had the final say over the instruments of their governance. This seems an intelligently-designed system.

It further seems to me that the Framers also allowed a mechanism for the inclusion of foreign law into American jurisprudence, where it was deemed appropriate: they provided that foreign law was part of the supreme law if it was included in a treaty submitted by the President and ratified by the Senate. In modern usage, the people retain even more control over the instruments of their governance, given that both President and Senate are now beholden to the voters.

Clearly, if there was to be any point in the ratification of the Constitution and its amendments, then they should not be redefined beyond their original meaning, as this would constitutue a de facto - and unconstitutional - amendment. In any instance, in over two centuries of American jurisprudence, no judge (to my knowledge, at least) has ever thought it appropriate - or even relevant - to use a foreign law passed subsequent to ratification in interpreting American law. Until recently, that is.

Could somebody who favors the use of foreign law explain to me why five appointed lawyers should be able to re-write the law, to imagine new clauses into the Constitution, using foreign law or merely the power of their own imaginations, in short, to undo the Framers intent to safeguard us from precisely this sort of tyranny?

It may well be that the system that the supporters of foreign law propose - wherein the Supreme Court decides not only what the law says, but what they think it should say, like some great platonic guardian of society's best virtues, rather than its actual opinions - is superior to that instituted by the Framers and ratified by the American people. It is, however, and none-the-less, not the constitution under which we have lived for the past two centuries. The supporters of this kind of action are "day by day designing a constitution for a country I do not recognize".

Posted by: Simon | Jun 16, 2005 5:49:48 PM

Wow, that little chart did NOT come out like I'd expected. Lemme try again.

Op-eds Shakespeare Kant Foreign Law Law Reviews Lower U.S. Courts
Pop. books Kafka Rawls Treatises Restatements
Coase Super-Treatises
Becker Declaration of Independence
Magna Carta

My point is that each of these things can be some argument for a particular understanding of the universe, of justice, etc. If it's persuasive, why not? What's the difference in kind, as opposed to in degree, between lower-court development of a doctrine, the magna carta, the latest Posner book, the Bible, and Shakespeare?

Posted by: Paul Gowder | Jun 16, 2005 4:23:20 PM

The reader - whether lay or lawyer - will instantly recognize that Shakespeare is not a valid source of legal authority and, as such, will treat the quotation as a nod to whimsy and perhaps an attempt at literary style.

Are you sure?

It seems to me that there's a continuum of persuasive, entirely non-binding authority, and that Shakespeare could fairly be seen on the far end of it, but yet still somewhat persuasive because it reflects a cultural value.
weaker stronger
Op-eds Shakespeare Kant Foreign Law Law Reviews Lower U.S. Courts
Pop. books Kafka Rawls Treatises Restatements
Coase Super-Treatises

Doesn't that make more sense than simply saying that some kinds of persuasive authority are verboten?

Posted by: Paul Gowder | Jun 16, 2005 4:19:08 PM

The issue of foreign law citation needs to be problematized in a more coherent fashion. If a court relies on foreign authority to provide a persuasive rationale for its decision, one needs to ask (1) why did the court choose the laws of that country and not another? (2) did the court assess the meaning of the cited law in a way that honestly and properly reflects the law's meaning? and (3) why did the court feel the need to cite foreign authority at all?

On the first point, John Yoo has usefully pointed out that judges almost always restrict their citation of foreign law to white western European laws. Why is this? Does it mean that those countries are somehow more akin to the United States than other countries' laws? Why would the civil law tradition hold any more weight than the common law tradition? Why would the civil law of western Europe be any superior than the civil code of, say, Japan? How is civil law any more relevant to the US Constitution than Islamic Sharia or the old Soviet codes? One might wonder whether judges choose those laws because they more accurately reflect the judges' own preferences and prejudices rather than bearing any relationship to the United States. One might also wonder whether this represents an unconsious return to the subtly racist concept of "civilized nations" that underscored the interpretation of "customary international law" in the 19th and early 20th centuries. If it is acceptable for a court to cite as persuasive authority a particular foreign law on a particular point, would it be equally acceptable for another court to cite the laws of another set of states that threatens one or more of the American constitution's liberties?

On the second point, we must wonder whether the law being cited is really law. After all, the constitutions of many countries have called "rights" what in reality are merely aspirations. This is not a political dig so much as a recognition of what the courts in those nations actually do. For instance, Article 27 of Japan's constitution proclaims that "All people shall have the right and the obligation to work" - but to my (limited) knowledge no Japanese court has ordered that all of the unemployed be employed. As a second subpart to this issue, many states have laws on the books which are simply ignored. Even western European states have ignored "binding" laws and regulations promulgated by the EC - this is a common complaint by the British, for instance. So, if a US court cites a particular law as a persuasive source of authority, this does not mean, ipso facto, that the cited law is valid and actually enforced, nor does this mean that the law means what the US Court claims it means. If the US court may cite foreign law that is not actually valid, and proclaim that the invalid law is persuasive authority for its own decision, what is the effect on US law if the foreign authority is discovered invalid or incorrect?

With regard to the third point, we must wonder why the US court chose to cite foreign authority at all. If it is not a matter of treaty law, or international commercial law, then why did the US court feel it incumbent to cite the foreign law? I have heard Judge Calabresi claim that the use of such citation is no different than the citation to, say, Shakespeare, but in this I think he is deliberately mistaken. The reason why common law courts issue lengthy opinions is so that the court can claim that it has reached its decision in a rational and authoritative manner - that is to say, the purpose of the opinion, especially of a SCOTUS opinion, is to convince readers that the court was correct and authoritative in reaching its holding. The reader - whether lay or lawyer - will instantly recognize that Shakespeare is not a valid source of legal authority and, as such, will treat the quotation as a nod to whimsy and perhaps an attempt at literary style. Yet the same reader is much more likely to believe that any foreign authority that is cited is valid and enforced law in its own land, and therefore the reader will accord this law an aura of legal authority that he or she will not give to, say, Shakespeare. For that reason, the use of foreign authority is a strong and deliberate attempt to reinforce the Court's legal decision, whereas the use of Shakespeare is not. If Judge Calabresi is mistaken in this, then we must ask why the US court has chosen to cite foreign authority in this particular case. One can imagine a world where courts cite foreign authority in every one of their decisions, but that is not the world in which we live. Instead, courts have largely relied on foreign authority (outside the specific context of treaty law and other international legal cases) where the Court believes that it needs to add the apparent gravitas of foreign thinking to reinforce a decision it recognizes may well be controversial and out of line with US precedents. In such a case, the foreign authority may be seen as providing the last push for the court to cross the goal line it has established for itself in rationalizing the decision at hand. When that is the case, the use of invalid foreign authority may be seen as particularly troublesome and even mendacious - if the US court knowingly or recklessly employs invalid foreign authority to reinforce its decision, it may be entirely appropriate to consider impeaching the judge or judges involved for having deliberately deceived the public in an attempt to alter or amend the constitution.

This may seem extreme, but the use and misuse of foreign authority invites queries into the judge's motives when the court renders decisions that change, alter or amend fundamental law in ways not envisioned by the US Constitution. That is to say, if a new right is to be created, the Constitution provides a mechanism for enacting that right. Courts, on the other hand, are in supposed to be in the business of interpreting and applying the law as it presently exists, whether the laws reflect the judge's preferences.

Posted by: James | Jun 16, 2005 3:32:16 PM

James, you are missing the second half of what I was saying. You are assuming that a judge or Justice does not understand the difference between the United States and another nation. I think that is an absurd basis for the argument. Do you really think any of the 9 members of SCOTUS do not know that France is a civil law system under its Fifth Constitution? Je pense que non.

Posted by: Joel | Jun 16, 2005 10:20:34 AM

Any chance the SCOTUS might import the Netherlands' views on legalized marijuana and prostitution? Maybe we could spice things up around here.

Posted by: phil | Jun 16, 2005 9:19:58 AM

The specific issue in Roper was that foreign and internatinal law--in this case a treaty the relevant provision of which the US Senate had expressely NOT ratified thirteen years previous--was used to import supposed evidence of cultural consensus into the "cruel and unusual" clause in order to bolster the scanty American case for majority's desired result. This is patently absurd and repugnant to American sovereignty. If the best indication of American cultural consensus is not represented by recent Senate action on the very question at issue, then the American people have no sovereignty and must bow to whatever foreign cultural norms the Supreme Court majority considers to embody the enlightened view.

US sovereignty requires the recognition that the American people can and will diverge from foreign cultural norms. Could the courts be trusted to cite foreign sources only as icing on the cake after making a solidly-reasoned American case, or as helpful in "analysing a problem" without the suggestion of their possessing authority to represent American cultural sensibilities--or (worse yet) an international authority to which America must be subject--then there would be no problem in allowing their citation. Roper demonstrates that the courts cannot be so trusted.

The problem is not in citation per se, the problem is in the use of foreign citations. Unless and until the courts become more disciplined, the practice should be forbidden.

Posted by: Nathan | Jun 15, 2005 8:45:39 PM

I think Joel hit the problem on the head, by accident. "How did France, under its system approach the issue?" That's precisely the point - France has a different system and American judges are simply not competent in the French system. Therefore, a particular French decision is made within the context of French jurisprudence and constitutional law (whatever it may be). Taking one decision by a court in a civil law country (perhaps where the court itself may be overruled by the political branches) and applying it in the context of the American constitutional system invites opportunistic cherry-picking. Does it matter whether the court can be overturned by the political process? Does it matter whether there is any judicial review in a country? Does it matter whether the law is actually enforced? Or does it only matter that the foreign authority supports the judge's prejudices? When did judicial reasoning become indistinguishable from appellate brief writing? (We expect lawyers to cite whatever sources of law and "justice" they can find to support their argument; one would hope that a judge would make his decision based on legal reasoning, however).

True, it may be noted that the judges don't "base" their decision on the foreign law, but then why cite it in the first place? Because they think it assists their cause. The equation is simple: Judge A doesn't like Law B; Judge A bans Law B, but, finding little support in the law, Judge A reinforces his or her weak rationale with supporting foreign laws or decisions. Does anyone think that this is not the purpose of citing these laws? Yet supporters of this jurisprudence do not seem overly worried that the judges may decide to pick on laws or constitutional concepts that they themselves favor - should the courts have reached a different ruling in the Yahoo French-Nazi case because France doesn't protect free speech? The US is an outlier in the world's legal and constitutional landscape for many reasons, so why do some judges (and their supporters) choose to restrict their use of contravening foreign authority to help overturn only some of the nation's laws? This does not seem to resemble the rule of law when the sources of fundamental law itself become so ambiguous. When fundamental law changes according to the whims of the judge, and the choice of picking random foreign laws to support a proposition is a whim of the judge, then the rule of law devolves into a proposition that the law proceeds only from the judge's mouth, l'etat c'est moi.

I admit that the general problem of lawless judicial opinions is inherent in all forms of substantive due process (from Lockner onward) but the problem is particularly acute with the misuse of foreign law because the statements can be made to seem so authoritative without any real reference or understand of the cited law's context or merit.

Posted by: James | Jun 15, 2005 7:50:39 PM

MJ, "Yes, I think that we can restrict secondary sources to only laws enacted by, or adjudicated, in our sovereign nation."
You stated that you thought we could restrict secondary sources only to enacted laws. That is the genesis of the comment I made regarding your view on source material.

I never made the claim that the court had the duty or charge to fix societal problems. You pulled that out of the hat in response to my statement about Congress' power to pass laws in response to court rulings. I do not follow where that comes from. As for "grafting" something on to the Constitution, that is an entirely seperate area of discussion from the properiety of consulting and citing to international law in opinions. That is an entirely distinct discussion regarding what the Constitution is and what is contained therein.

I do not understand the argument that our learned profession of judges in the Anglo-American system of jurisprudence should forgo knowledge and insight. You seem to be arguing against the use of extranational documents as mandatory authority. On this, I agree. Mandatory authority only exists in the laws and cases of the applicable sovereign, federal or state. Extranational judicial opinions and laws, however, should not be ignored sinmply because they did not originate here. In my mind, this is akin to telling Oppenheimer and Einstein not to do research for teh US Government because they weren ot born here. When a court is presented with a question of constitutional interpretation and look sto another nation's decisions, why do you assume that the court is doing anythin more than observing and considering how that nation dealt with that issue under that constitution? The assumption is that judges are so stupid that they do not recognize that we are not France or Germany and that our Constitution is different. Fine. Our constitution is our constitution. But how did France, under its system approach the issue? Is there anything we can learn from that approach, good or ill?

Data is good. Knowledge is good. Judges traffick in knowledge and analysis. I do not understand why you say they should not be reading about alternative approachs to a problem that may or may not shed some light on how the problem may or may not be approached in our own system. Perhaps I am not communicating clearly. I acknowledge this.

1) Judges makes decisions about american law.
2) Judges recognize mandatory and secondary authority.
3) International laws are secondary authority in the US
4) Judges may consult secondary sources in analyzing an problem, such as a law review, treatise, or international law.
5) Where is the problem?

I cannot buy into an assumption that judges are abdicating sovereignty merely because they are citing to secondary sources. If that were the case, than we should also prohibit every non-opinion work written by Posner from being considered by a court.

Posted by: Joel | Jun 15, 2005 6:02:11 PM

I didn't say "no secondary sources of law" - I said foreign law is an inappropriate secondary source for an American court. The views of other sovereign nations are wholly, entirely, and competely irrelevant to what our constitution means.

You say that the legislative branch can change laws to fix problems the courts see. That is absolutely backwards. It never is or was the court's job to fix societal problems in the first place. And I know that you know that there aren't just simple legislative fixes when the court grafts something onto the constitution.

You say I'm trying to force judges to work in limited pathways. Are there no pathways that are improper for judges to consider? Some folks think that there are and that foreign law is one of them.

Posted by: MJ | Jun 15, 2005 4:59:12 PM

MJ, you just said there should be no secondary sources of law. Laws properly enacted are primary sources. By the same logic, we should stop the use of law reviews, ALRs, encylopedias, and Scallia's 40 year old dictionary. The arguments that it is wrong to read other people's take on the law rings fallacious to me when I lok at its underlying assumption. The argument seems to me to disfavor impartial analytic work by judges. I don't think we should look at Israel's jurisprudence as mandatory authority, but there are soem interesting cases and work dealing with issues from Australian and British courts that may bear on how to approach an problem under our law. To me, it seems to be telling New York courts that they cannot look at what New Jersey courts have done with an issue. Sovereignty is there, too.

Of coarse I am not saying there is unlimited power in the Judiciary. Courts are inherantly limited in what powers are under their purview. They do not pass laws. They do not initiate laws. (Please, let us save 'activist' judge discussions for someplace else). The executive and Legislative (at the federal level) control who is appointed to the bench. The legislative can change laws to fix the problems courts see. We also have the example of the 11th Amendment as a rejoinder to Hans v. LA. I also do not think individuals outside of the judiciary have any business trying to tell a judge how to judge when they themselves are not one and are trying to force intellectual work to occur in limited pathways. Scallia gets to complain all he wants about Ginsberg in an opinion.

Posted by: Joel | Jun 15, 2005 3:39:17 PM


Yes, I think that we can restrict secondary sources to only laws enacted by, or adjudicated, in our sovereign nation. Sovereignty exists for a reason; we are not subject to what the electorate or judges of another nation thinks is the right way to approach issue X.

I'm all for judicial independence, but that doesn't mean that it grants unlimited, unquestionable authority for American courts to use sources of the law of other sovereign nations as justification to change our laws.

Folks on the left seem to be consistently saying that judicial independence means that there can be no checks on courts, that they are immune, short of criminal misconduct, from being checked in their exercise of power. They're not. Courts can exceed their constitutional powers. When they use foreign law as a justification to change the meaning of our constitution, they are undermining our sovereignty.

Judge have freedom, but surely Joel, you're not saying that it is without it's limits?

Posted by: MJ | Jun 15, 2005 3:17:44 PM

Joel: Shhhhhh! Don't tell the conservative that we have judges who aren't supposed to bow to the winds of the electorate. It might blow his/her 'lil majoritarian mind.

Posted by: Paul Gowder | Jun 15, 2005 3:11:53 PM

Are we restricting secondary sources for the judicial branch to what other people think are appropriate? If a particular law journal falls out of vogue with the powers that be, should we tell judges they cannot read that journal or cite that journal as secondary support in opinions? My intellectual disconnect here is that we are not talking about abdicating any decision making authority or mandatoryness to non-United States laws. We are talking about whether a judge or Justice can properly consider secondary sources in reaching a conclusion.
MJ, the point of having judges whoa re not elected and who have a life tenure so they are not beholden to a particular administration is so that the judges have the freedom to make decisions that are correct under the law and the constitution but that would not be voted for by the current majority.

Posted by: Joel | Jun 15, 2005 2:53:58 PM

If we are so "aligned in shared values with the western democracies" then it would seem that the way we would show that allegiance by legislatively adopting their views rather than have them decreed to us by judicial fiat.

Furthermore, I don't trust nine unelected judges, using a tri-partite framework designed by academics citing to other academics, to decide what values the United States shares with Belgium.

Posted by: MJ | Jun 15, 2005 1:39:11 PM

No Stuart, because the bias becomes a legitimate societal one, rather than an illegitmate individual one. If the U.S. as a collective nation is aligned in shared values with the western democracies, then it follows that terms like "cruel" and "unusual" in the U.S. constitution could be defined in that context. This is entirely different from "Justice Kennedy happens to like the western democracries, so he imports their stuff into U.S. law"

Posted by: Paul Gowder | Jun 15, 2005 11:20:30 AM

I haven't read the article, but the abstract sounds very curious. It claims to be answering the charge that certain judges have a "self-serving and biased penchant for preferring materials from Western democracies at the expense of all other countries." Its response to that charge is to offer a "framework" that "combines the democratic credentials of the originating country with such country's societal affinities to the United States." But that framework would seem to produce the same result that was complained about in the first place!

Posted by: Stuart Buck | Jun 15, 2005 10:25:15 AM

The very fact that the article's purpose is to construct a framework to select "appropriate" foreign materials gives away the game "Appropriate"? A squishy word if there ever was one. Appropriate to whom? Would it be appropriate to consider all of Western Europe's banning of mid and late term abortion as persuasive authority to do the same here under the U.S. Constitution? Would it be "appropriate" to observe that none of the Western European countries have an exclusionary rule and then use that as persuasive authority to do away with ours? As Justice Scalia said in Simmons, you are just inviting judges to look out over the crowd and pick out their friends to support their policy preferences.

And judges are now to evaluate another country's "democratic credentials" and their "societal affinities to the United States"? What on God's green earth could make a judge think themselves qualified to make such a judgement, one shot through with political and ideological judgements.

The use of foreign law, except in interpreting treaties and/or international trading/shipping/contract cases is an invitation to give federal judges the ability to impose a world view on the United States that it's citizens did not vote for and would not ratify in their Constitution. It is a galactically bad idea.

Posted by: MJ | Jun 15, 2005 9:28:20 AM

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