FOREIGN LAW CITATIONS?
Two articles from Legal Affairs on foreign law citations in U.S. courts: one, contra, by Judge Richard Posner, and one, pro, by GULC Professor Vicki Jackson. Judge Posner understates the function of amicus briefs in bringing aspects of foreign law to the attention of the Court. To be sure, this means that foreign law will be translated through a strategic context, but so are other kinds of facts and rules that get the judges' attention.
In addition, it may be true that citations to foreign law are part of a process of "mystification" ("disguis[ing] the political decisions that are the core, though not the entirety, of the Supreme Court's output," as judge Posner puts it), but that's a general critique that can be made of much judicial argumentation and justification. One would then need to see such foreign citations as a habit fundamentally similar in kind to other kinds of argumentative moves made by the Justices -- albeit appealing to different constituencies than, say, references to "original intent." Not sure where that gets us. But I need to think about this some more.
Suffice it to say that I'll side with Prof. Jackson in the meantime!
2 Comments:
I'm not "with it," like the kids say these days, so I don't know how Big the Foreign Citation Problem actually is.
But (as you might guess from our conversations) this seems an open and shut win for Posner to me. Our laws and institutions derive their authority from eachother and ultimately from the consent of the governed. That's sensible, like Posner argues (I think), because those laws and institutions are built in a context that reflects their country.
Citing foreign laws in an argument to an American court makes as much sense as trying to fix a car with parts from a dishwasher. Or something like that. I was trying to work out something with bird wings and pigs, but it seemed to send the wrong message.
On the other hand, I can see some times where it might be productive and on-point to cite foreign laws or cases, if the point is to illustrate how different legal and institutional premises lead to different conclusions. Like I say, I don't have a sense of how vast the actual Foreign Citations Problem is, and what the particular awful circumstances have been.
But in the meantime, I'm plenty suspicious.
I've recently been (justifiably) taken to task for not reading stuff thoroughly first before opining on it. My comment above was another case of this regrettable tendency; sorry.
Having now read Posner to the end I learn foreign citations played a role in Lawrence v. Texas; digging a little further, I see an HRW amicus curiae brief may have given some ammunition to Justice Kennedy's thinking in the case, and that Justice Scalia specifically took issue with that. If it was only Kennedy, the 6-3 margin insulates the ruling against this concern somewhat.
I'll think about this more myself, and give Ms. Jackson's piece a more thorough 2d chance. But so far I still think Posner and (gasp) Scalia are right: those foreign rulings should play no role in American jurisprudence (any more than ours should play in theirs). Posner, I think, makes the right distinction in rejecting treating such opinions or decisions as authoritative in any sense, rather than as simply interesting.
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