My views on this important question and other related questions can be found on my blog entry for July 7th. What Mark seems to overlook is the all important distinction between controlling authority (like the rulings of a higher court) and merely persuasive authority (like a law review article, a treatise, or the decisions of a court of a different jurisdiction). This is, of course, part of the point of the Marshall quote: Surely he didn't think that English law was controlling authority in the U.S., but it could certainly be cited as persuasive on a question of admiralty law. Like law review articles, the decisions of foreign courts are merely persuasive authorities, not controlling authorities, and people can and do use them to persuade or give heft to their arguments. Whether they actually do persuade or give heft is another matter.
http://balkin.blogspot.com/2003_07_06_balkin_archive.html#105759689857590250
Here is the relevant section:
Yet, one might object, what if courts in Europe take positions that are at odds with cherished American liberties? For example, many countries around the world have restrictions on free speech that are inconsistent with American free speech law. What is to stop American courts from citing those decisions? Well, nothing prevents an American court from citing such decisions, but citing such a decision does not make it convincing to other judges, nor, more to the point, does it make the decision controlling legal authority. Judges often cite law review articles or treatises for positions inconsistent with existing doctrines, (and other judges cite contrary law review articles and treatises) but that doesn't mean that judges have to follow what the law reviews or treatises say unless the judges are convinced by their reasoning. In like fashion, judges are free to reject or completely ignore the decisions of foreign courts if they think that they are irrelevant or unconvincing. That is precisely what circuit courts do with decisions by other circuit courts they disagree with, and state courts do with decisions by other state courts they think are wrong. That's what it means for authority to be merely persuasive rather than controlling authority. (Perhaps Hillyer is worried that American judges will read these foreign court opinions and become convinced by them. If that's his real worry, I think there is a long list of law reviews and treatises he should keep out of their hands as well, not to mention books, movies and television shows.).
Hillyer might resent judges using foreign court decisions to support liberal causes he thinks are inconsistent with the best interpretation of the Constitution. But there is no reason why Justice Scalia or other conservative jurists couldn't cite other constitutional courts as support for positions they happen to admire. And, in the long, run, I suspect that this is exactly what will happen, once people get over the shock of seeing foreign court opinions cited: Decisions by various foreign courts will be cherry picked and cited by both sides of a dispute selectively to make their points, just as law review articles and treatises are cited.
I strongly suspect that the reason why Justice Kennedy picked the European Court of Human Rights is because it agreed with a position he otherwise supported, and because he regarded it as a respected court. It is very doubtful that he would cite with approval a court that he didn't agree with, or one that he thought was from a country with a long history of human rights abuses, because that would undermine the citation's persuasive authority. Here again, citation of foreign court decisions seems to me very much like the way that judges currently cite law reviews or treatises. They cite them if they agree with them, or to underscore particular points in an argument they are making. They do not, and cannot cite them as controlling authority.
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Frankly, I think that the ranting and raving about the citation to the European Court in Lawrence seems to me to be nonsense. It's not treated as controlling authority by the court in Lawrence, merely as persuasive authority, and for a rather minor point: If Bowers is premised on the idea that homosexuality is inconsistent with Western values, (Chief Justice Burger's claim), or on the notion that any argument for homosexual rights "is, at best facetious," (Justice White's claim) we might look to see what other Western countries and constitutional courts have done. They are not American courts, to be sure, but they give some evidence of what Western values are and what is a reasonable as opposed to a facetious claim about liberty, just as decisions by state courts in the United States give some evidence.
If the Court begins to think that decisions of European courts are controlling authority, that would be a horse of a different color, but I have seen no evidence that anything like this is in the offing.
Jack Balkin
At 12:00 AM 8/6/2003 -0700, you wrote:
Date: Tue, 5 Aug 2003 08:46:58 -0700 From: "Scarberry, Mark" <[EMAIL PROTECTED]> Subject: Re: Referring to Foreign Law MIME-Version: 1.0 Content-Type: text/plain
It hardly is surprising that US courts would consider respectfully decisions from other countries regarding "belligerent and neutral rights." The law of war is one of the traditional kinds of international law. Whether decisions from other nations should influence our courts in deciding internal domestic matters is the question we've been discussing, I think. I wonder whether Jack thinks US courts should rethink their abortion jurisprudence in light of the substantially more restrictive approaches taken in most other countries.
Mark S. Scarberry Pepperdine Univ. School of Law
