Re: Referring to Foreign Law
With regard to my last post in response to Jack, let me add: When the issue to be decided by a US court involves international law, as in the maritime case from which Jack quotes, then decisions of foreign nations' courts may be analogous to decisions of sister circuits. The foreign courts are interpreting and attempting to apply the same body of law, and uniformity is an important goal. This does not justify giving similar 'strongly persuasive' weight to decisions of foreign courts as to domestic legal matters. Mark S. Scarberry Pepperdine University School of Law
Re: Referring to Foreign Law
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
Re: Referring to Foreign Law
If a ratchet principle applies, so that we only pay serious attention to foreign law that is better than ours, then why do we need to look at foreign law at all? If there is some way of seeing that another approach is better than the existing approach, and if courts have the authority and duty to improve the law, then the foreign decisions are superfluous (unless we are so hidebound that we cannot imagine another approach until we see it embodied in a foreign decision). Of course, the question whether a particular suggested change in our law enhances human dignity or otherwise would be desirable is often highly contested. Many people believe our present very loose abortion laws (as required by interpretations of the US Const) are extremely damaging of human dignity, and that they allow the destruction of human life on a far larger scale than the killings done by way of capital punishment. Persons taking that view would of course say that the ratchet would permit US courts to take seriously the European approach that is more protective of the unborn. Others would disagree. And we couldn't tell how the ratchet should work without deciding who was right, in which case we would not need to look to foreign law. Thus, a ratchet principle is, in my view, useless. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Robert Sheridan [mailto:[EMAIL PROTECTED] Sent: Tuesday, August 05, 2003 12:48 PM To: [EMAIL PROTECTED] Subject: Re: Referring to Foreign Law Mark asks: ...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. I feel like jumping in, for me. Jack, I think, can take care of himself. I don't think we're talking about adopting foreign law. We're asking whether and when it's okay for the Court to cite to it as being a good idea. The question is, What are the neighbors doing? Do they use the death penalty willy-nilly, or have they outlawed it. Who are they? The Brits? The French? Saddam's Iraqis? The Saudis? We're free to look around us and see what is likely to work for us and what is anathema. One would hope that the One Way Ratchet Principle would operate, such that values and laws that militate in favor of greater human freedom or liberty are adopted, as opposed to those having the effect of retrenching or constricting individual freedom liberty. Thus one would ask why certain countries have abolished the death penalty, not why others have run amok with it, or why some other countries have no divorce (e.g. Philippines) or abortion rights. Look abroad, in other words, to enhance human dignity, not diminish it. If the neighbors can get along without draconian laws, maybe so should we. As I understand it Scalia objected to that, and I wonder why. He's not opposed to enhancing human freedom, liberty, or dignity, is he? Robert Sheridan [EMAIL PROTECTED] [Original Message] From: Scarberry, Mark [EMAIL PROTECTED] To: [EMAIL PROTECTED] Date: 8/5/2003 8:49:49 AM Subject: Re: Referring to Foreign Law 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 -Original Message- From: Jack Balkin To: [EMAIL PROTECTED] Sent: 8/5/2003 12:39 AM Subject: Re: Referring to Foreign Law 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
Re: Referring to Foreign Law
Mark asks: ...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. I feel like jumping in, for me. Jack, I think, can take care of himself. I don't think we're talking about adopting foreign law. We're asking whether and when it's okay for the Court to cite to it as being a good idea. The question is, What are the neighbors doing? Do they use the death penalty willy-nilly, or have they outlawed it. Who are they? The Brits? The French? Saddam's Iraqis? The Saudis? We're free to look around us and see what is likely to work for us and what is anathema. One would hope that the One Way Ratchet Principle would operate, such that values and laws that militate in favor of greater human freedom or liberty are adopted, as opposed to those having the effect of retrenching or constricting individual freedom liberty. Thus one would ask why certain countries have abolished the death penalty, not why others have run amok with it, or why some other countries have no divorce (e.g. Philippines) or abortion rights. Look abroad, in other words, to enhance human dignity, not diminish it. If the neighbors can get along without draconian laws, maybe so should we. As I understand it Scalia objected to that, and I wonder why. He's not opposed to enhancing human freedom, liberty, or dignity, is he? Robert Sheridan [EMAIL PROTECTED] [Original Message] From: Scarberry, Mark [EMAIL PROTECTED] To: [EMAIL PROTECTED] Date: 8/5/2003 8:49:49 AM Subject: Re: Referring to Foreign Law 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 -Original Message- From: Jack Balkin To: [EMAIL PROTECTED] Sent: 8/5/2003 12:39 AM Subject: Re: Referring to Foreign Law 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 MIME-Version: 1.0 Content-Type: text/plain; charset=US-ASCII 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.
Re: Referring to Foreign Law
Prof. Balkin writes: 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. COMMENT: I would go further. The Supreme Court has held that the law of nations primarily is ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law. United States v. Smith, 5 U.S. (Wheat.) 153 (1820). Francisco Forrest Martin
Re: Referring to Foreign Law
Prof. Scarberry writes: When the issue to be decided by a US court involves international law, as in the maritime case from which Jack quotes, then decisions of foreign nations' courts may be analogous to decisions of sister circuits. The foreign courts are interpreting and attempting to apply the same body of law, and uniformity is an important goal. This does not justify giving similar 'strongly persuasive' weight to decisions of foreign courts as to domestic legal matters. COMMENT: What we now call international law is not exactly the same as the law of nations (jus gentium). International law was a phrase first coined by Jeremy Bentham in 1780, and it referred only to jus inter gentes (i.e., law between nations). See Jeremy Bentham, Principles and Morals of Legislation (published not until 1789). Strictly speaking, international law is only a subset of the law of nations. The Constitution uses the phrase the law of nations. It refers not only to law governing relations between nations (or states) but also to nation's own domestic legal affairs. James Wilson was very clear about the application of the law of nations to domestic affairs. See James Wilson, Lectures on Law, Of the Law of Nations, ¶ 1 (1791) (Some seem to have thought, that [the law of nations] respects and regulates the conduct of nations only in their intercourse with each other. A very important branch of this law 'that containing the duties which a nation owes itself' seems to have escaped their attention. 'The general principle . . . of the law of nations, is nothing more than the general law of sociability, which obliges nations to the same duties as are prescribed to individuals.') (Wilson may have been referring to Bentham in this passage when he says Some seem to have thought . . . .) A perfect example of this is the lex mercatoria that is a subset of the law of nations governing private transnational commercial affairs (now known as private international law). As I have mentioned in an earlier posting, the Interstate Commerce Clause (which is misnomer -- the clause addresses commerce among the several states) is governed by the law of nations -- specifically -- but not exclusively -- by the lex mercatoria. This is consistent with the whole Commerce Clause addressing commerce with foreign states and Indian tribes that was also governed by the law of nations. Therefore, the law of nations as ascertained . . . by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law does govern the U.S. own domestic affairs. United States v. Smith, 5 U.S. (Wheat.) 153 (1820). The law of nations as ascertained by foreign state practice and foreign judicial decisions is controlling on U.S. domestic legal matters insofar as (i) the U.S. has acquiesced to the customary international legal norm (i.e., not expressly objected to it when it was emerging) and (i) the facts involved in a particular case are sufficiently analogous to an instant case -- as is the case in any use of case precedent. Francisco Forrest Martin
Re: Referring to Foreign Law
Prof. Funk writes: [Ginsburg in Grutter] did not recognize any obligation. She expressly stated that the convention was evidence of international understanding. To imply that she suggested any obligation arising from the Convention is not just misleading; it is dishonest. Comment: This is an irrelevant distinction. Are you really telling me that Ginsburg does not believe that CERD legally binds the U.S. -- that a treaty that the U.S. ratified is not legally binding on the U.S.?! Prof. Funk continues: In your posting to which I referred, you stated that in Lawrence the law cited (actually the law cited were European Court of Human Rights cases as well as foreign national cases) was reflective of a U.S. customary international legal norm. My point was that in Lawrence, the Court did not cite to any law from these foreign (non U.S. cases); it noted these decisions as reflective, not of law, but of values held by western democracies. Thus, both the Court and Justice Scalia were in agreement that these foreign cases were not evidence of U.S. customary international legal obligations. They were in disagreement as to whether these foreign cases might be relevant to whether the values of western civilization could not abide a right to homosexual sodomy. Comment: I now understand your point. However, my point was directed at Scalia in his dissent who should have referred to the ECHR cases as international legal -- not foreign -- cases. Prof. Funk continues: Mr. Martin continued: This should not be a controversial matter. Otherwise, it's like saying Kansas v. Colorado is foreign law for Florida. Huh? Kansas v. Colorado, the famous long standing dispute over the meaning of the Arkansas River Compact? I fail to see the relevance of a U.S. Supreme Court decision acting under its original jurisdiction to the effect of a foreign court decision on United States' courts. Obviously, the Supreme Court's decisions on matters of federal law are not foreign law in state courts, any more than federal law is foreign law in state courts. But I am obviously missing something here. Comment: I chose Kansas v. Colorado because the Supreme Court described itself in that case as an international tribunal applying international law. (I could also have used Pehallow v. Doane.) We do not describe Kansas v. Colorado as foreign law in the same way that we should not be describing ECHR caselaw as foreign law. (Foreign law usually means foreign domestic law.) The Constitution as a multilateral regional treaty established an international tribunal (viz., U.S. Supreme Court) in a similar way as the Articles of Confederation established boards of commissioners, the ECHR established the European Commission and Court of Human Rights, etc. Prof. Funk continues: Even I would agree that foreign cases may be evidence of international customary law. Whether they are strong evidence depends upon a number of factors. Whether customary international law, assuming that a given norm is established as such, is an obligation upon domestic U.S. courts also depends upon a number of factors. The extent to which customary international law can trump domestic U.S. law is an unknown. Comment: I agree. Prof. Funk continues: There are few if any domestic cases decided upon the basis of customary international law that was in conflict with the otherwise applicable domestic law. Comment: This is not quite right. It is pretty clear from state and federal case law that customary international law trumps state law. There is a division of authority over whether customary international law trumps federal statutes and executive orders. When the Supreme Court has spoken in dicta, it has said that customary international law (concerning the laws of war) trumps Congressional acts. Prof Funk continues: Prof. Funk appears to be making the same mistake as Scalia and Rehnquist by making international law equivalent to foreign law. Mr. Martin has me wrong. If I am making a mistake, it is the same mistake as the Court in Lawrence and Justice Ginsburg in Grutter. Comment: I believe that some of our disagreement arises over the fact that I was addressing Scalia and Rehnquist, whereas you were addressing Ginzburg. Prof. Funk continues: International and foreign law are interesting and may provide some enlightenment as to generally accepted norms, but they are not law in domestic Constitutional law cases. Comment: How do you square this statement with your earlier statement appearing to recognize that customary international law and foreign law may be binding on the U.S. in certain cases? Francisco Forrest Martin
Re: Referring to Foreign Law
Prof. Scarberry writes: When the issue to be decided by a US court involves international law, as in the maritime case from which Jack quotes, then decisions of foreign nations' courts may be analogous to decisions of sister circuits. The foreign courts are interpreting and attempting to apply the same body of law, and uniformity is an important goal. This does not justify giving similar 'strongly persuasive' weight to decisions of foreign courts as to domestic legal matters. COMMENT: What we now call international law is not exactly the same as the law of nations (jus gentium). International law was a phrase first coined by Jeremy Bentham in 1780, and it referred only to jus inter gentes (i.e., law between nations). See Jeremy Bentham, Principles and Morals of Legislation (published not until 1789). Strictly speaking, international law is only a subset of the law of nations. The Constitution uses the phrase the law of nations. It refers not only to law governing relations between nations (or states) but also to nation's own domestic legal affairs. James Wilson was very clear about the application of the law of nations to domestic affairs. See James Wilson, Lectures on Law, Of the Law of Nations, ¶ 1 (1791) (Some seem to have thought, that [the law of nations] respects and regulates the conduct of nations only in their intercourse with each other. A very important branch of this law 'that containing the duties which a nation owes itself' seems to have escaped their attention. 'The general principle . . . of the law of nations, is nothing more than the general law of sociability, which obliges nations to the same duties as are prescribed to individuals.') (Wilson may have been referring to Bentham in this passage when he says Some seem to have thought . . . .) A perfect example of this is the lex mercatoria that is a subset of the law of nations governing private transnational commercial affairs. As I have mentioned in an earlier posting, the Interstate Commerce Clause (which is misnomer -- the clause addresses commerce among the several states) is governed by the law of nations -- specifically -- but not exclusively -- by the lex mercatoria. This is consistent with the whole Commerce Clause addressing commerce with foreign states and Indian tribes that was also governed by the law of nations. Therefore, the law of nations as ascertained . . . by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law does govern the U.S. own domestic affairs. United States v. Smith, 5 U.S. (Wheat.) 153 (1820). The law of nations as ascertained by foreign state practice and foreign judicial decisions is controlling on U.S. domestic legal matters insofar as (i) the U.S. has acquiesced to the customary international legal norm (i.e., not expressly objected to it when it was emerging) and (i) the facts involved in a particular case are sufficiently analogous to an instant case -- as is the case in any use of case precedent. Francisco Forrest Martin
Re: Referring to Foreign Law
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. What strikes me is that we incorporated 'foreign' law wholesale when we adopted the Constitution, the product of English, French, and Roman political thought and process. Montesquieu comes to mind, as does the Senate and the English Common Law up to independence. Jefferson admired the French and we loved it at the time of Citizen Genet when they seemed to validate our revolution by having one of their own. When we get into our occasional periods of national neurosis, not to say psychosis, we seem to get caught in a process that we have difficulty freeing ourselves of. Jim Crow and the McCarthy Red-scare experience, for example. Apart from flailing around until the tide recedes, we might do well to accept a life ring from the hand of a foreign source. To refuse even to consider foreign law, and cite it, seems a triumph of parochialism. If natural law, which sometimes seems a bit supernatural, has sometimes counted in Conlaw, then why not foreign law, which at least may have the virtue of having its feet on the ground of someone's experience. Are conservatives more parochial than liberals, by nature? Predictors of conservatism are said to be: fear, aggression, dogmatism, authoritarianism, tolerance of inequality, intolerance of ambiguity, resistance to change and lack of integrative complexity. This from an August 3 article by Insight staff writer Vicki Haddock published in the San Francisco Chronicle (try sfgate.com) concerning researchers Jack Glaser, Ph.D. psychology, of UC Berkeley's Goldman School of Public Policy and John Jost, Stanford Graduate School of Business re: a study of studies of conservatives in an article they had published in the Psychological Bulletin of the American Psychological Ass'n., National Review Online columnist Jonah Goldberg called the research more bogus than a $6 Rolex, stating If you think left-wingers have a high tolerance for ambiguity, try telling them a factory closing can be a good thing, and going on to say, Liberalism in America is almost entirely reactionary, citing the last presidential election where, he says, the Democratic rhetoric was all about 'stopping' Big oil, Big tobacco, Big this and Big that. Robert Sheridan [EMAIL PROTECTED] SFLS [Original Message] From: Francisco Martin [EMAIL PROTECTED] To: [EMAIL PROTECTED] Date: 8/4/2003 10:22:25 AM Subject: A washingtonpost.com article from: [EMAIL PROTECTED] You have been sent this message from [EMAIL PROTECTED] as a courtesy of washingtonpost.com Thinking Outside the U.S. By Charles Lane The Supreme Court is going global -- and not just in the sense that several of the justices have embarked on their annual summer voyages to European destinations. Rather, the court's own decision-making is beginning to reflect the influence of international legal norms, as well as rulings by courts in foreign countries. The trend peaked in the two most important cases of the recently completed term -- the court's rulings permitting race-conscious admissions in higher education and abolishing state prohibitions on private, consensual homosexual conduct. In both cases, justices invoked legal principles that were not made exclusively in the United States. In the affirmative action case, Justice Sandra Day O'Connor wrote for a 5 to 4 majority that the University of Michigan Law School's effort to enroll a critical mass of black, Latino and Native American applicants could pass muster under the U.S. Constitution -- though such programs might not be necessary 25 years from now. Justice Ruth Bader Ginsburg wrote a separate concurring opinion, joined by Justice Stephen G. Breyer, that noted that the court's 25-year time frame was consistent with the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, but that it should not be considered a firm forecast. More decisively, Justice Anthony M. Kennedy buttressed his majority opinion in the homosexual conduct case by noting that the court's past approval of state sodomy bans was out of step with the law in other Western democracies. Citing opinions of the European Court of Human Rights, he wrote that the right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. The court's consideration of these international perspectives was a breakthrough for the transnational legal perspective, which, advocates say, recognizes that the United States -- historically an innovator in constitutional adjudication -- now has much to learn from the rapidly developing constitutional traditions of other democracies. Human rights progress is not the same in every part of the world at the same time, said Harold Hongju Koh, a professor of international law at Yale who
Re: Referring to Foreign Law
Dear Bob, I disagree with this some of the analysis you offer in your email below. You urge the wisdom of at least considering foreign views. The suggestion sounds progressive. Yet where Congress has spoken, and the conduct in question is rationally within Congress's legitimate areas of concern, it seems plainly wrong to create an opportunity of judicial discretion to disregard the act of Congress. In all cases in which our national interests are engaged, even where foreign law would seem better to vindicate our own interests than our own case law, it would be more direct and honest to adopt rather than apply foreign law ~ that is, to change our law to reflect our true policies ~ rather than to let foreign law govern. It also may turn out much of the time that, since we are a democracy, or try to be, our law is actually the more progressive, or better law. I don't mean to be arrogant ~ better law is simply a term of art (albeit a controversial one) ~ in the conflict of laws. For example, I would not like us to be so sensitive to foreign sensibilities that our courts will validate foreign disabilities imposed abroad on American women. Congress agreed with this view in prospectively overriding the Aramco case in the Civil Rights Act of 1991 (I think). I used to write a lot about this sort of thing. I had a piece in Georgetown, Against Comity, which has some of the extended argument and contains cites to the rest of it. Best, Louise At 02:10 PM 8/4/03, you wrote: 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. What strikes me is that we incorporated 'foreign' law wholesale when we adopted the Constitution, the product of English, French, and Roman political thought and process. Montesquieu comes to mind, as does the Senate and the English Common Law up to independence. Jefferson admired the French and we loved it at the time of Citizen Genet when they seemed to validate our revolution by having one of their own. When we get into our occasional periods of national neurosis, not to say psychosis, we seem to get caught in a process that we have difficulty freeing ourselves of. Jim Crow and the McCarthy Red-scare experience, for example. Apart from flailing around until the tide recedes, we might do well to accept a life ring from the hand of a foreign source. To refuse even to consider foreign law, and cite it, seems a triumph of parochialism. If natural law, which sometimes seems a bit supernatural, has sometimes counted in Conlaw, then why not foreign law, which at least may have the virtue of having its feet on the ground of someone's experience. Are conservatives more parochial than liberals, by nature? Predictors of conservatism are said to be: fear, aggression, dogmatism, authoritarianism, tolerance of inequality, intolerance of ambiguity, resistance to change and lack of integrative complexity. This from an August 3 article by Insight staff writer Vicki Haddock published in the San Francisco Chronicle (try sfgate.com) concerning researchers Jack Glaser, Ph.D. psychology, of UC Berkeley's Goldman School of Public Policy and John Jost, Stanford Graduate School of Business re: a study of studies of conservatives in an article they had published in the Psychological Bulletin of the American Psychological Ass'n., National Review Online columnist Jonah Goldberg called the research more bogus than a $6 Rolex, stating If you think left-wingers have a high tolerance for ambiguity, try telling them a factory closing can be a good thing, and going on to say, Liberalism in America is almost entirely reactionary, citing the last presidential election where, he says, the Democratic rhetoric was all about 'stopping' Big oil, Big tobacco, Big this and Big that. Robert Sheridan [EMAIL PROTECTED] SFLS [Original Message] From: Francisco Martin [EMAIL PROTECTED] To: [EMAIL PROTECTED] Date: 8/4/2003 10:22:25 AM Subject: A washingtonpost.com article from: [EMAIL PROTECTED] You have been sent this message from [EMAIL PROTECTED] as a courtesy of washingtonpost.com Thinking Outside the U.S. By Charles Lane The Supreme Court is going global -- and not just in the sense that several of the justices have embarked on their annual summer voyages to European destinations. Rather, the court's own decision-making is beginning to reflect the influence of international legal norms, as well as rulings by courts in foreign countries. The trend peaked in the two most important cases of the recently completed term -- the court's rulings permitting race-conscious admissions in higher education and abolishing state prohibitions on private, consensual homosexual conduct. In both cases, justices invoked legal principles that were not made exclusively in the United States. In the affirmative action case, Justice Sandra Day O'Connor wrote for a 5 to 4 majority that the University of Michigan Law School's
Re: Referring to Foreign Law
It is misleading to characterize the law to whichU.S. Supreme Court justices havecited in a number of recent decisions (e.g., Lawrence) as "foreign" law.Depending on the case, the law cited was either a U.S. treaty obligation (Convention to Eliminate All Forms of Racial Discrimination in theMichigan affirmative action case) orreflective of a U.S. customary international legal norm (ECHR cases in Lawrence). Both Scalia and Rehnquist havemischaracterized this international law as merely foreign domestic law in a number of cases. Because amicireferred to this law not as foreign law butasa U.S. treaty obligation or reflective of a U.S. customary international legal norm in these cases (see, e.g.,Koh and Wilson briefs), I am starting to believe that Scalia and Rehnquist may have been disingenuous in characterizing this law as merely "foreign." Francisco Forrest Martin President Rights International, The Center for International Human Rights Law, Inc. [EMAIL PROTECTED] - Original Message - From: Louise Weinberg To: [EMAIL PROTECTED] Sent: 8/4/2003 3:43:28 PM Subject: Re: Referring to Foreign Law Dear Bob,I disagree with this some of the analysis you offer in your email below. You urge the wisdom of at least considering foreign views. The suggestion sounds progressive. Yet where Congress has spoken, and the conduct in question is rationally within Congress's legitimate areas of concern, it seems plainly wrong to create an opportunity of judicial discretion to disregard the act of Congress. In all cases in which our national interests are engaged, even where foreign law would seem better to vindicate our own interests than our own case law, it would be more direct and honest to adopt rather than apply foreign law ~ that is, to change our law to reflect our true policies ~ rather than to let foreign law "govern." It also may turn out much of the time that, since we are a democracy, or try to be, our law is actually the more progressive, or "better" law. I don't mean to be arrogant ~ "better law" is simply a term of art (albeit a controversial one) ~ in the conflict of laws. For example, I would not like us to be so "sensitive" to foreign sensibilities that our courts will validate foreign disabilities imposed abroad on American women. Congress agreed with this view in prospectively overriding the Aramco case in the Civil Rights Act of 1991 (I think). I used to write a lot about this sort of thing. I had a piece in Georgetown, "Against Comity," which has some of the extended argument and contains cites to the rest of it.Best,Louise At 02:10 PM 8/4/03, you wrote: I was [a little] surprised to see the objection by Scalia to referring toforeign law as some authority, and, if memory serves, Thomas as well in adifferent case.What strikes me is that we incorporated 'foreign' law wholesale when weadopted the Constitution, the product of English, French, and Romanpolitical thought and process. Montesquieu comes to mind, as does theSenate and the English Common Law up to independence. Jefferson admiredthe French and we loved it at the time of Citizen Genet when they seemed tovalidate our revolution by having one of their own.When we get into our occasional periods of national neurosis, not to saypsychosis, we seem to get caught in a process that we have difficultyfreeing ourselves of. Jim Crow and the McCarthy Red-scare experience, forexample. Apart from flailing around until the tide recedes, we might dowell to accept a life ring from the hand of a foreign source.To refuse even to consider foreign law, and cite it, seems a triumph ofparochialism. If natural law, which sometimes seems a bit supernatural,has sometimes counted in Conlaw, then why not foreign law, which at leastmay have the virtue of having its feet on the ground of someone'sexperience.Are conservatives more parochial than liberals, by nature?Predictors of conservatism are said to be: fear, aggression, dogmatism,authoritarianism, tolerance of inequality, intolerance of ambiguity,resistance to change and lack of "integrative complexity."This from an August 3 article by Insight staff writer Vicki Haddockpublished in the San Francisco Chronicle (try sfgate.com) concerningresearchers Jack Glaser, Ph.D. psychology, of UC Berkeley's Goldman Schoolof Public Policy and John Jost, Stanford Graduate School of Business re: astudy of studies of conservatives in an article they had published in thePsychol ogical Bulletin of the American Psychological Ass'n.,National Review Online columnist Jonah Goldberg called the research "morebogus than a $6 Rolex," stating "If you think left-wingers have a hightolerance for ambiguity, try telling them a factory closing can be a goodthing," and going on to say, "Liberalism in America is almost entirelyreactionary," citing the last presidential election where, he says, "theDemocratic rhetoric was all about
Re: Referring to Foreign Law
Francisco Martin wrote: It is misleading to characterize the law to whichU.S. Supreme Court justices havecited in a number of recent decisions (e.g., Lawrence) as "foreign" law.Depending on the case, the law cited was either a U.S. treaty obligation (Convention to Eliminate All Forms of Racial Discrimination in theMichigan affirmative action case) orreflective of a U.S. customary international legal norm (ECHR cases in Lawrence). Justice Ginsburg's concurrence in Grutter referred to the International Convention on the Elimination of All Forms of Racial Discrimination as evidence of "international understanding," not as a US treaty obligation. Clearly, the Court did not view that Convention as trumping the the Equal Protection Clause, or the outcome in Gratz would have been otherwise. The Court in Lawrence referred to the European Court of Human Rights cases (and unnamed other nations' domestic cases) as "evidence of values we share with a wider civilization" to attack Justice Burger's contrary statements that condemnation of homosexual sodomy is "firmly rooted in Judaeo-Christian moral and ethical standards," see Lawrence, 123 SCt at 2481, and to rebut Bowers to the extent that it "relied on values we share with a wider civilization," see id, at 2483. The Court did not cite it or use it as an example of a customary international legal norm binding upon the United States. Moreover, the only amicus brief cited by the Court with respect to international norms rejected the notion that foreign cases bound the US, stating instead: "This Court should pay decent respect to these opinions of humankind." Thus, it is Mr. Martin who is "misleading," when he suggests that the citations to foreign cases and an international convention were applications of US law. Bill Funk Lewis Clark Law School
