04 Apr Justice Ginsburg and Secretary of State Rice at the ASIL; More on Citation to Foreign Sources by U.S. Courts
As many of you may already know, Justice Ruth Bader Ginsburg gave the keynote address at the American Society of International Law’s Annual Meeting. This, in and of itself, is worthy of special note. However, on top of this, Secretary of State Condoleezza Rice introduced the Justice with a short speech covering the relation of the rule of law to the expansion of liberty around the world. See the New York Times article about the speeches here.
Justice Ginsburg’s speech focused on the debate over citing to foreign law in court opinions. Noting that judges are “free to consult all manner of legal commentary,” she gave a spirited defense of the practice of reading and citing to foreign opinions. In part, her reaction to the criticisms of citing to foreign law can be described as that it is much ado about nothing or perhaps much ado about very little. No U.S. judge citing to foreign law claims that it is in any way binding; quite simply it is a matter of looking to what other legal experts facing similar problems have done. She discussed cases from the Supreme Court and from the circuit courts that referred to foreign law.
Justce Ginsburg was clearly nonplussed by criticism that citing to foreign law is like going to a cocktail party and picking and choosing who you talk to. Both sides to a litigation can draw analogies to foreign law (or other non-binding material, for that matter)… if it seems reasonable, if we can learn from it, then why shouldn’t we be able to look at it, if we choose to? As for the argument that other countries have learned from us in how to build constitutional democracies, thus it would be backwards for us to look to them for ideas, she paraphrased Judge Patricia Wald in concluding that “wise parents know how to learn from the experiences of their children.”
I agree that this debate is really much ado about very little. Nonbinding material ranging from literature to the writings of political philosophers to the decisions of courts from other states of the U.S. to the decisions of foreign courts are referred to by judges from across the political spectrum. It is hard to make an argument that one non-binding source can not be allowed (foreign judgments) while most or all the others can. Justice Scalia, to his credit, argues that his view of foreign law is based on his interpretive originalism that would be hostile to any of these materials being included. Very few judges take their interpretive philosophy to quite this extreme, however. (and some have argued that not even Scalia consistently follwos his own rule.) So, then, what is a principled reason for allowing some non-binding material but not other such material? And, as Justice Breyer had previously queried in a discussion with Justice Scalia, does it really make sense that a Justice should be allowed to read such material but, even if it in all honesty affected how they approached the problem, they should not be allowed cite to it in their opinion?