Tuesday, April 13, 2004

previous entry | main | next entry | TrackBack (0)

Should U.S. courts listen to international law?

Tim Wu pens an interesting but incomplete Slate essay on a growing trend -- the citation of international law and foreign law in U.S. Supreme Court decisions. The highlight:

Legal "comparativism" in the Supreme Court is staging a comeback. In Atkins v. Virginia, the 2002 decision in which the court barred the execution of the mentally retarded, the following sentence appeared in Justice Steven's opinion: "Within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." And Lawrence, last year's sodomy decision, also used foreign materials, albeit to refute international claims made in an earlier case. In 1986, then-Chief Justice Warren Burger (a great xenophile) had argued in Bowers v Hardwick that bans on gay sex were "firmly rooted in Judeo-Christian moral and ethical standards." In Lawrence, Justice Anthony Kennedy pointed out that whatever ancient practice might have been, England in particular (perhaps under the influence of David Beckham) and Europe in general had changed their minds. Even the current chief justice, William Rehnquist, has dabbled in comparativism—discussing the Dutch experience in the course of rejecting a right to assisted suicide in 1997's Washington v. Glucksburg.

It's become a bit of a Punch and Judy show: Just about every time the court cites foreign materials, Scalia and/or Clarence Thomas dissent. In the words of Scalia, "The views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution." Or, to quote Thomas on the subject, "This court should not impose foreign moods, fads, or fashions on Americans."

Wu argues that Scalia and Thomas are overreacting, comparing the citation of foreign experiences as the legal equivalent of a 50 Cent shout-out to Bob Dre:

[The Supreme Court] has not deferred to or followed foreign cases in statutory or constitutional cases. Scalia and the House Republicans, for effect really, are mixing up the difference between listening to foreign ideas and obeying foreign commands. Scalia is like the prohibitionist who confuses drinking with alcoholism. His narrowly correct point stigmatizes a range of reasonable, indeed salutary, judicial behavior.

Wu has a valid point to make -- the Supremes aren't in the thrall of Eurocrats. Still, one suspects that Wu is sanguine in part because the Court is citing foreign law that is consistent with modern liberalism. One wonders what the reaction would be if the foreign legal shout-outs were for less desirable principles the conservatism of the Official Secrets Act or the more statist bent behind U.N. treaties on economic and social rights.

The citation of foreign legal norms is not merely decorative -- it's strategic as well.

As further evidence that Slate has cornered the popular market on interesting Supreme Court writing, go read Dahlia Lithwick's quickie on the Supreme Court's federal marshals.

UPDATE: Jacob Levy reminds me that he penned an excellent TNR Online essay five months ago on this very topic. Levy draws an appropriate distinction between appropriate and inappropriate citations of foreign law:

[I]t seems perfectly reasonable to... allow decisions from other common law jurisdictions (England, Scotland, Canada, Australia, etc.) to act as persuasive precedent--which is subordinate to any on-topic binding precedent from one's own jurisdiction--just as a decision from a Delaware court can influence a decision on a similar question in New York. American law, including the American constitution, is built on common law concepts; and part of the common law mode of reasoning is for judges to be persuaded by interpretations and arguments offered by other judges....

To look at how other comparable systems address "a common legal problem," and at their reasons for doing so; to consider whether they are right or wrong, whether their reasons are persuasive; to engage not with the alleged sentiments of the world community but with the judicial arguments of other courts trying to interpret constitutional principles--this is the right way to proceed.

Check out Ken Kersch's "Multilateralism Comes to the Courts" in the Winter 2004 issue of Public Interest (hat tip to Jeff Singer)

posted by Dan on 04.13.04 at 12:05 AM


"Against the insidious wiles of foreign influence (I conjure you to believe me, fellow citizens) the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government." - George Washington


posted by: BigJosh on 04.13.04 at 12:05 AM [permalink]

American courts have always, and always will, routinely cite foreign law in particular specialized fields such as admiralty and commercial law.

So this is really a question of degree.

posted by: Tom Holsinger on 04.13.04 at 12:05 AM [permalink]

Thinking about the proposition in the reverse - that the Supreme Court should entirely ignore the entire jursiprudential experience of EVERY OTHER nation in the world - makes the issue pretty clear for me

posted by: David on 04.13.04 at 12:05 AM [permalink]

The WaPo had a great piece on this a week or two ago (so much for Slate's cornered market). It dug up years' worth of Scalia's red hot dissents--many of them literally footnotes to history, which had me for the first time in my life singing Scalia's praises.

If the Supreme Court wishes to end capital punishment (one of the cases cited dealt with the death penalty for mentally impaired criminals), it seems to me that justification for this shift in the law can and should be found exclusively in US jurisprudence. To say, as the more liberal justices increasingly do, "Europeans don't like such and such punishment" is beyond irrelevent--it is tantamount to setting a nebulous and unverifiable "global opinion" on par with over two centuries of constitutional law. I'm no legal scholar, but this is an abomination.

posted by: Kelli on 04.13.04 at 12:05 AM [permalink]

Since the Supreme Court on death penalty issues interprets "cruel and unusual" with reference to the ethical, legal, and moral standards in effect at the time it is writing, citing what the Euros and the rest of the world think is somewhat relevant to the issue.

I'll worry when the Supreme Court decides UN or other international treaties overrule established constitutional law.

posted by: Appalled Moderate on 04.13.04 at 12:05 AM [permalink]

Tim Wu pens an interesting but incomplete Slate essay on a growing trend -- the citation of international law and foreign law in U.S. Supreme Court decisions.

It's not a "growing" trend, or anything the least bit novel. What in the world do you think the Supreme Court cited as precedent for the first 75 years of its existence?

The fact of the matter is that U.S. courts cite all sorts of things in the course of articulating the rationales for their decisions: articles by law professors, bits of Shakespeare, New Yorker cartoons. The suggestion that there is something peculiar about citing a legal case from a foreign jurisdiction is willfully stupid.

posted by: alkali on 04.13.04 at 12:05 AM [permalink]

There is a large difference between "persuasive authority" and "controlling authority". No one is suggesting that foreign law should be controlling authority. As Tom points out, there are certain areas of the law where foreign courts are the only courts that have previously dealt with the issue at hand. Using foreign legal opinions for persuasive purposes shouldn't be controversial. It might just sharpen the judge's argument as to why he ruled differently. Moreover, some of our law comes from other legal traditions - community property, for instance, is a Spanish law idea, there are two distinct theories on water rights coming from two traditions, etc. Then there is the entire state of Louisiana. Foreign opinions might just help the judge understand where the law has been, so he can understand better the current law and apply it to the new facts.

The common law function of precedent did not stop with the ratification of the American constitution - nor should it. You may not like European thinking on issues like capital punishment, but ignoring it will not result in better American jurisprudence. The use of precedents, even foreign precedents, is not in any way a surrender of sovereignty by our courts nor is it a grant of jurisdiction to foreign courts, as some would have us believe. Hardly an “abomination”, such an argument is a classic straw man.

posted by: TexasToast on 04.13.04 at 12:05 AM [permalink]

For the record, I am against capital punishment, especially in cases of mental retardation. However, I don't give a crap what French judges, Russian lawmakers or shariah-citing 'ulema in Iran say about any issue of relevance in my country and my life. I daresay it would be a dealbreaker for most Americans if they ever tune in to SC deliberations. Liberals in this country would do well to note the kneejerk reaction of the American masses to almost anything that follows "in Europe they believe..."

In a way, it's good to see the general lay debate over legal issues move beyond Roe v. Wade. In my twenties the only time I tuned in to SC decisions was when abortion rights were concerned. Now it's a much more complex thing (which is not to say I don't appreciate the didactic qualities of all the posts above--I do).

posted by: Kelli on 04.13.04 at 12:05 AM [permalink]

Still, one suspects that Wu is sanguine in part because the Court is citing foreign law that is consistent with modern liberalism.

Well, duh. American citation of foreign laws is very narrow. Courts generally cite "people like us": Europeans and international lawyers. This is not the legal thinking of the world. It is the legal thinking of "Western Civilization." In fact, it is even less; it is the feelings and values of one part of that civilization, the part that I suspect Wu feels most comfortable in.

(No doubt this is partly because the legal business is literary rather than sociological. Judges look at what people write. Generally, they don't look for research on what ordinary people experience as the effective laws, or what ordinary people think the laws should be. Indeed, I suspect that such research is awful thin.)

If American courts were truly interested in what the world thinks, they would be giving serious consideration to major entangling of church and state and wondering what's so important about civil liberties. Don't get me started on what they'd have to consider doing to the rights of gay people.

posted by: Roger Sweeny on 04.13.04 at 12:05 AM [permalink]

"Liberals in this country would do well to note the kneejerk reaction of the American masses to almost anything that follows 'in Europe they believe...'"

Ha! So true! You know, I think Kerry really thought he would score points with his foreign-leaders-support-me appeal. It had quite the opposite effect, I think (the question of whether it was even true aside). His cluelessness was telling.

posted by: Nicole Griffin on 04.13.04 at 12:05 AM [permalink]

Would it be rude of me to point out my TNR column on this question from five months ago?


posted by: Jacob T. Levy on 04.13.04 at 12:05 AM [permalink]

Levy's qualifier -- the use of persuasive precedent from the English-speaking common law countries -- is appropriate and crucial. There is nothing dangerous or particularly new about that.

Citing as persuasive precedent rulings from European or other international courts is another thing altogether. I don't think it is particularly widespread now, but the enthusiasm of some of our judges for the exercise of arbitrary power suggests the need for vigilance. A David Souter or Sandra O'Connor disclaimer about the influence of European jurisprudence on their decisions is not one I would be inclined to trust.

posted by: Zathras on 04.13.04 at 12:05 AM [permalink]

A few years ago I was standing in line at the deli counter at Zabar's. A woman in front of me lit up a cigarette. I pointed to the No Smoking sign. She put out the butt and whined, "In France, where everybody is more sophisticated, no one ever complains about smoking a cigarette."

To me (and I have been a practicing, not academic, lawyer for almost 30 years) references to the European Court of High Justice or the Iranian High Court of Sa'ira or whatever the left considers fashionable are about as relevant as that womans whining.

Let's face it. The current US Supreme Court is making it up as they go along with all of the intellectual consistency and validity of the canasta game that my grandmother used to take my great-grandmother to every Friday night.

posted by: Robert Schwartz on 04.13.04 at 12:05 AM [permalink]

This topic was also tackled in the Winter 2004 issue of "The Public Interest". Here is the link: http://www.thepublicinterest.com/. Once at the home page scroll to the bottom and you see the article titled "Multilateralism Comes to the Courts" by Ken Kersch. It is an excellent overview and explores the issue from a number of perspectives.

posted by: Jeff Singer on 04.13.04 at 12:05 AM [permalink]

Post a Comment:


Email Address:



Remember your info?