Re: Treating Treaties Roughly

[Louise Weinberg]

Dear Jack,
        The point, of course, is that if learned counsel offer these materials they will be received with respect in our courts ~ but not as authority.  "Considered," but not necessarily followed.  Discretion, not obligation.  This discussion has not mentioned a third path sometimes taken by American courts.  A treaty will be treated as an obligation and then solemnly construed away.  Such is the fate of law that really is not "better" in better courts.  To take a workaday example, years ago the Supreme Court was presented with a treaty purporting to establish seamen's remedies.  The point of the treaty, the Court said, by Justice Douglas, was to bring the signatories further along to meeting American standards, not to freeze our case law at some lesser standard agreeable to the largest common denominator at some past point in time.  Since Douglas's opinion in that case the treaty has been pretty much a dead issue in American courts.  An amusing event ~ I wonder how common?
Best,
Louise

At 02:39 AM 8/5/03, you wrote:

I recently discovered this outrageous quote from a well known American jurist.  I think this man should be immediately impeached:

The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognized by all civilized and commercial states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice: but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a s[e]ries of judicial decisions. The decisions of the Courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of the Courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this.

Great principles of reason and justice?  Receiving decisions of the Courts of every country with respect?  My goodness, is there no end this man's anti-Americanism and his rank judicial activism? ;-)

Jack Balkin



At 12:00 AM 8/5/2003 -0700, you wrote:

Date:    Mon, 4 Aug 2003 12:10:04 -0700
From:    Robert Sheridan <[EMAIL PROTECTED]>
Subject: Re: Referring to Foreign Law
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I was [a little] surprised to see the objection by Scalia to referring to
foreign law as some authority, and, if memory serves, Thomas as well in a
different case.