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Thursday, July 07, 2005

Citation to foreign authority: no more now than ever before

Since the Supreme Court cited to non-American precedent on three recent occasions - in cases holding anti-sodomy statutes unconstitutional, increasing the minimum age of death-penalty eligible defendants, and removing the mentally retarded from such eligibility - the dudgeon has been intense.  The very helpful Opinio Juris is all over the dispute.

But is there anything new about citing foreign law?  To see, I checked all reported federal cases from 1945-May, 2005 for references to decisions of a number of selected foreign high courts in North America, Europe, Africa, and Asia.  I found little evidence of a trend.   Just one example: between 1945-55, the courts cited to foreign authority 130 times.  In the 1990s, the courts cited to foreign authority 121 times.   Between 1995 and the present, I found 145 citations.  (Because the courts issue many more decisions now than they did after WWII, I normalized these scores to 1995 numbers - that's what you're reading.  There was an an absolute increase in the number of times foreign cases were cited - but also a tenfold number of reported decisions by the federal courts).

I also read the cases citing foreign decisions and coded the reasons why the citation was made.  Here too, fears of overreliance on foreign authority ...

seem overblown.  The most common reason foreign decisions were cited was to help a federal court interpret foreign law, followed closely by the sorts of litigation coordinating activities that Anne-Marie Slaughter has identified as a particularly important way that domestic courts get involved in international law.  It is true that in approximately 20% of the cases I found, foreign decisions were used to help courts interpret domestic law - but usually the domestic law to be interpreted was either admiralty law, which traditionally looks to foreign decisions, or state common law, to which, for whatever reason, citations to cases from other former colonies of the British empire has been customary.

All of this is very tentative, of course - I'm still fooling around with my data, and just because the courts haven't turned to foreign law frequently or dangerously in the past doesn't mean they won't start doing so in the future.  But I think that the data so far suggests

  • citation to foreign authority is hardly unprecedented, even in the modern era;
  • but such citation, when it does happen, is limited,  supportable under a number of theories of judging, and rarely applied to constitutional interpretation.

Perhaps, then, this talk of impeaching judges who do cite to foreign cases is a tad premature.  What would you like to know about the way the courts use foreign cases?

Posted by David Zaring on July 7, 2005 at 12:31 AM in Article Spotlight | Permalink

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Comments

The U>S> Constitution is the supreme law both domestic and foreign because the Constitution makes empirical facts the supreme law. Look at Article Nine: habeas corpus;facts are required to justify imprisionment.attainder;facts are required to justify any punishment. ex post facto; subsequent facts csannot be substituted for first facts. nobility;the facts cannot be disregarded altogether. The U.S. Constitution is a milestone in human reason because it demands verifiable reason operate on empirical facts. Can any other system of law claim this?

Posted by: dennis | Nov 15, 2005 3:29:42 PM

Death: Canada cites foreign law almost as much as its own. I think it is really unfortunate. Just look at the latest Chaoulli v. Quebec case on private health care: a case was partly justified on the basis of not merely international law, but international practices, behaviour.

Posted by: Jonathan | Jul 9, 2005 3:35:40 PM

There's a literature on this - and let me somewhat flippantly summarize it without citing it: foreign courts cite US decisions all the time. France may be different and establishment is certainly different, though, so it's not that the point doesn't make sense.....

Posted by: david | Jul 8, 2005 5:42:36 PM

Somewhat off topic but in an attempt to drive a signficant point home, how often other countries around the world, specifically Western European countries, cite American laws for justifying whatever new law their Supreme Courts have ruled for?

How well does French lacite translate to the American Establishment Clause?

Posted by: Deathbeforedishonor | Jul 8, 2005 4:57:40 PM

Samantha, you'd be surprised how much litigation coordination there is with Canada and Mexico that doesn't have to do with common law. But common law culture does provide a reason to cite - and France gets in a lot of licks when federal courts are trying to guess what the law of Louisiana might be.

Posted by: david | Jul 8, 2005 2:02:57 PM

As a matter of curiosity, I'd be interested to know the breakdown of citations by country and by general subject matter (e.g. tort law, constitutional law, etc.) I suspect that most of the foreign cases cited are from countries whose courts derive from a primarily British legal system (Canada, Australia, the United Kingdom, etc.)

Posted by: Samantha | Jul 8, 2005 11:00:54 AM

I personally wouldn't have a problem with the magna carta being used to illustrate the development of the meaning of "due process" in the common law, no. I mean, it would be a bit odd to only use that quote, in isolation, with no other discussion, but it's hard to envisage how or why it would be used without being a part of such a discussion. Pre-revolutionary English law was a fundamental and underlying part of American practise (we were, after all, colonies of which country...?), and even if the founders rejected the rulers, the context of the time - the original understanding of the text - cannot but be informed by the Anglo-American Common Law and the legal framework which had existed at the time.

Of course, the magna carta is probably less directly usefull than Blackstone, or the constitutions of the states adopted after the revolution, but it is valid in the sense that it predated the Constitution, and a reasonable person in 1787 would have had at least a fair grasp of what it was and what it did.

I'm not sure if that answers your question or not?

Also, regarding your last note - there is a world of difference between writing a constitution and interpreting a constitution. The Framers cited foreign law, of course they did, and not just English law. They were designing a constitution, it would only make sense! But - unless you're prepared to make a full and frank admission that the Supreme court has taken it upon itself to become a sitting Constitutional Convention - a Justice of the Court isn't writing a constitution, and unlike the work of the Framers, each SCOTUS decision involving foreign law is not subject to ratification by conventions in nine thirteenths of the states (or even three quarters of the state legislatures).

Think of it like this. I drive to work every morning, and I see a new sign advertising the Hardees Breakfast Bowl. Yum, thinks I, and pulls of the highway into the nearest Hardees. On my way home nine hours later, I see a similar new advertisement on the other side of the highway, but this time for Bob Evans. Is the second sign relevant to determining what I had for breakfast? Of course not - I didn't see it until AFTER I'd had breakfast!

Likewise, just as Bob Evans is no better nor worse than Hardees, maybe some of the things that foreign law tells us would be a good idea to have in the Constitution. Maybe there should be a constitutional right to an abortion. I mean, there isn't one, but maybe we should put one in there. You know, maybe that's a good idea, maybe it's a bad idea. So if we're going to amend the constitution vis-a-vis abortion, maybe one thing worth doing is looking around the world and seeing what other countries do; I mean, that could be interesting and relevant to working out what the Amendment's going to say. Maybe we'd discover that we are one of only six countries in the world that allows abortion on demand at any time prior to viability, and think twice.

But anyway, the point is -- so foreign and comparative law may or may not be very usefull today - just as it was usefull in 1787 - in determining what the Constitution should say. But it is of no use today in telling us what the Constitution DOES say. The Supreme Court is not mentioned in Article V, and while Judicial Review is necessarily implied in Article III, the power of constitutional amendment - equally clearly - is not. If you have strong feelings about what the Constitution should say, and you're arguing a case in front of SCOTUS based on what the Constitution should say, because the constitutions of every other civilized country says that thing, then I submit that you're in the wrong building, my friend! You're lost - you should be in the Capitol, across the street, where what the Constitution should say is relevant!

The point I'm trying to make - and I really have to hope you're protesting too much in saying you don't understand this, because it's really a fairly simple thing to grasp - is that anything which informed the meaning and understanding of the Constitution at the time of ratification - including that legal heritage which we share with the mother country - is potentially valid in determining what a provision means. But laws passed in other countries since that time are necessarily and obviously invalid, because they cannot have informed the writing or understanding of the Constitution. If I'd known that there was a Bob Evans, maybe I'd have stopped there for breakfast - but I didn't know, and so it's silly to ask what was on Uncle Bob's menu in a discussion my choice of a Breakfast Bowl. It might be interesting - we might just learn something, as Justice Breyer is fond of saying - but it won't be relevant.

It seems to me, by the way, that a large percentage of people who support the use of foreign law, are people who have qualifications in foreign law; and many of the papers about how useful foreign law could be in con law are in journals about...Foreign law. Which is wonderfully convenient, it seems to me. Of course, if foreign law was irrelevant to American jurisprudence, there's not going to be much call for people with qualifications in foreign law. Maybe a few multinational corporations have legal departments, or State, or the UN if you like New York...But, the more numerous the places which use foreign law, the more job openings for people with qualifications in it. If foreign law is relevant to everyday US law - then that's the whole Federal Court system that's a potential source of exciting employment. So I can't help but wonder if it's a desparate attempt to find relevance, in much the same way that a man armed only with a hammer goes in search of everything that vaguely resembles a nail.

Posted by: Simon | Jul 8, 2005 10:36:45 AM

re: pre-revolutionary war cases: why should that be any less controversial than citing current law from the same country? I don't see it. The U.S. revolted against England and implicitly repudiated their law. Yet, right after the revolution, the most distinguished commentators were citing English law -- not for interpretation of the common law, but for the very text of the constitution.

How is this more legitimate than citing to, say, German law today?

Posted by: Paul Gowder | Jul 8, 2005 9:29:34 AM

Akhil Amar in his Findlaw column discussed Eighth Amendment jurisprudence, including the appropriateness of citing foreign law as one part of determining its application in modern times.

The Calbresi article supports citations of foreign law in various contexts.

Various controversial applications in recent memory are somewhat misunderstood. The citation in Lawrence is one, as a comment above noted. The citation was not long and specifically was used to counteract another one in Bowers! Int'l law has been cited in death penalty cases for years. It was not "relied upon" in Roper.

But, what about the length of the section? Besides being somewhat atypical (except in a Breyer concurring/dissenting opinion), one cannot really put too much emphasis on it. Shouldn't at least. Amar would argue that it has some relevance in 8A law.

I also note that many states cite "foreign" law, including those of other states. They find it of some relevance, even if the other states have different laws. Other nations, without cheapening their sovereignty finds our legal cases of some relevance as well.

Given the limited use, I don't think doing the same is such a big deal. There is way too much exaggeration here.

Posted by: Joe | Jul 8, 2005 1:34:19 AM

Jonathan - not many English cases, because of the the particular criteria I looked for. It's really not at all uncommon for courts to cite to pre-revolutionary war cases, and not really something anyone's worried about, so I excluded them from the sample.

But Bruce, that's a fascinating fact re: the anti-common law approach. I guess everyone would have used "general law" and Vattel, etc, otherwise?

Posted by: david | Jul 8, 2005 12:04:54 AM

Actually, there was a movement in several states in the early years of the Republic -- kind of reminiscent of today's debate -- to ban all citation to English common law decisions, precisely because it was considered unpatriotic to cite anything British. Kentucky, I think, had such a law at some point.

Posted by: Bruce | Jul 7, 2005 7:51:15 PM

Moreover, the Magna Carta contains the following text:

A Freeman shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement; and a Merchant likewise, saving to him his Merchandise; and any other's villain than ours shall be likewise amerced, saving his wainage, if he falls into our mercy. And none of the said amerciaments shall be assessed, but by the oath of honest and lawful men of the vicinage. Earls and Barons shall not be amerced but by their Peers, and after the manner of their offence. No man of the Church shall be amerced after the quantity of his spiritual Benefice, but after his Lay-tenement, and after the quantity of his offence.

Now that could easily be seen as the origin of both the 8th amendment (foreign law paradise!) and the "jury of his peers."

Can the U.S. Supreme Court follow English law based on that provision of the Magna Carta, or not?

Posted by: Paul Gowder | Jul 7, 2005 6:38:04 PM

The Americans rebelled against the authority of Parliment, fundamentally (taxation without representation, etc.), which necessarily included the laws passed under that authority.

Or, Simon, what of it? Suppose the Supreme Court used English law, based on the following phrase which appears in the Magna Carta,

No freeman shall be taken, imprisoned,...or in any other way destroyed...except by the lawful judgment of his peers, or by the law of the land. To no one will we sell, to none will we deny or delay, right or justice.

to interpret the Due Process clause? Would that be correct? Would that correctness depend on whether the cases used occurred before or after enactment? And if so, why?

Posted by: Paul Gowder | Jul 7, 2005 6:35:26 PM

Correct me if I am wrong Mr. Gowder, but was it really the English law the the Americans rebelled against?

I am Canadian, but from my limited knowledge of the Declaration of Independence and other sources, it seemed to me that the rebellion was an issue of power not law. The King refused to assent to laws, he interfered with the custom of an independent judiciary, for depriving Americans of ancient rights (trial by jury, govt by consent, "for abolishing the free System of English Laws in a neighbouring Province").

Thus, I am not really sure that ancient common law can really be equated with the law from Zimbabwe. America inherited the British legal tradition.

I wonder Mr. Zaring, how many of those foreign cases in the last 60 years have been from the United Kingdom?

Posted by: Jonathan | Jul 7, 2005 6:04:51 PM

I'm not aware that anyone has attempted to suggest that citing Blackstone is remotely equivalent to citing, for example, a 1982 opinion of the High Court of India. The pre-revolutionary English common law is of direct relevance to the interpretation of the US Constitution, as it was part of our shared inheritance from the mother country. Similarly, the constitutions of the States adopted during and after the revolution are of direct relevance. But post-ratification information - be it foreign law or the Constitution of the State of Alaska - is of no relevance to the meaning of the terms of the Constitution.

Posted by: Simon | Jul 7, 2005 6:02:55 PM

You're correct, but what could be more foreign than the law of the country we revolted against?

My point being that the interpretation of the treason clause was guided by the english interpretation of a statute enacted by an entirely different legislature that happened to have the similar language.

Posted by: Paul Gowder | Jul 7, 2005 5:41:55 PM

Paul, correct me if I'm wrong, but unless I'm misreading the link you posted (this one), there is no reference to foreign law, only pre-revolutionary English practise?

Posted by: Simon | Jul 7, 2005 5:13:40 PM

I restate my previous objections. Foreign law is point-blank irrelevant to the interpretation of the Constitution of the United States, even if it has littered, on rare occaision, the pages of the U.S. Reports. See also, Breyer & Scalia at AU (video | transcript).

Posted by: Simon | Jul 7, 2005 4:56:16 PM

More nice comments - and yes, I'll have to be sensitive on the normative point, Jonathan. Matt, I'm unfamiliar with the Bowers argument, but I like it. And Paul, I think a huge chunk of the early S.Ct. citations were to foreign sources - though that may have been because there was little federal case law on point. But to use it for treason - a particularly striking example.

Posted by: david | Jul 7, 2005 4:11:41 PM

One thing that made citation of foreign law perfectly reasonable, even necessary, I think, in Lawrence was that a large part of the argument in Bowers was that such laws were part of the long-standing western tradition- the countries in all of the west had had anti-sodomony laws, and that this helped justify ours. But, if this was changing (as the citations to foreign law here shows) than this justification for the ruling in Bowers no longer can have as much weight. Given this, this sort of use of foreign law seemed perfectly reasonable, even called for, to my mind.

Posted by: Matt | Jul 7, 2005 2:18:25 PM

(whoops, sorry about the double-post)

Posted by: Paul Gowder | Jul 7, 2005 1:43:02 PM

Joseph Story used foreign law to interpret the treason clause as early as 1833...

Posted by: Paul Gowder | Jul 7, 2005 1:34:38 PM

Joseph Story used foreign law to interpret the treason clause.

Posted by: Paul Gowder | Jul 7, 2005 1:33:05 PM

IT may not be normative in aim, but I would suggest to be careful when using things like, "fears" of international law in domestic law seem "overblown."

Good distinction though.

Posted by: Jonathan | Jul 7, 2005 1:12:07 PM

Nice comments. A couple quick responses.

- I'm doing a descriptive, instead of a normative take - and Eugene is right to note that the kind of survey I'm doing won't have much to say about the quality of the attention to foreign law in those opinions that do look to it.

- I leave to others the question whether citation to foreign law is normatively justified. It could be that the sort of nose-counting involved in cruel and unusual or basic rationality inquiries is appropriate and traditional, or it could be that it is standardless. I do, however, think the debate about the significance of extra-American citation is crying out for a sense of perspective about the size and shape of the phenomenon.

- I saw Calbresi's article. It's doing a more impressionistic survey of 200 odd years of precedent, and just focuses on the Supreme Court (hardly unprecedented, but why, oh why, do people do that?). I'm trying to provide a full picture of court to court citation, focusing only on the modern era.

Posted by: david | Jul 7, 2005 9:29:43 AM

I am not sure if the increase in foreign cases is really the issue. It may be a tangent, but correct me if I am wrong in saying that the problem with citing cases is that it is happening at all. It is historicism to say that because no one was clamouring about foreign law in the past that clamouring about foreign law now is wrong. The problem with foreign law is not necessarily the constitutional element (as you say is rare in foreign law cases), but people who argue for it would say that its use misrepresents the social contract: that people in a given jurisdiction make their own measure: quod omnes tangit ab omnibus approbetur. "All" is local, not global.

Posted by: Jonathan M | Jul 7, 2005 4:38:22 AM

On SSRN Steven Calabresi has a very comprehensive article on the Supreme Court's use of foreign law, canvassing the Court's entire history; if you haven't seen it you might want to take a look.

Posted by: Eugene Kontorovich | Jul 7, 2005 1:33:48 AM

The recent controversy is not about "citation" to foreign law per se. Citation itself is wholly innocuous, and might have little connection to substance (take for example the typical law review article).

The concern raised by the recent Supreme Court cases arises from several factors, which I think make them distinguishable from much of the prior citatoin to foreign law.

1) Foreign law is used to interpret the Constitution (which engrafts the foreign law onto ours in a way that is particularly hard for the elected branches to undo).

2) Quantity. Roughly 20% of Roper is given over to foreign law -- an entire Roman numeral. This is striking given that the case raised no issue of foreign law. (I make this point in my article Disrespecting the "Opinions of Mankind”: International Law in Constitutional Interpretation, 8 Green Bag 2d 261 (2005).)

3) What makes the recent decisions troubling is that the Justices (and many amici) seem to take international legal convergence as an independent normative value. That is, they seem to think reaching the same results as other nations has some value in itself: the citation to foreign law is not comparative, but normative. In other words, the justices are introducing a new maximand into their jurisprudential calculus: how close we can get to the rest of the (European?) world.

4) The recent cases concern matters intertwined with morality and social values, where "community standards" might be particularly important. Foreign law about such things as strict liability vs. negligence, or punitive damages, might be generally instructive, because there is broad normative agreement about the goals of a tort system. Not so with the role of government in regulating private sexual conduct, for example. To take a more clear cut example, surely European standards of obscenity have little applicability to the U.S., because America is simply a more puritanical country.

Posted by: Eugene Kontorovich | Jul 7, 2005 1:32:00 AM

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