"Outsourcing Authority": Symposium at Albany Law School

Albany Law Review sponsored a symposium today on the topic of “Outsourcing Authority: Citation to Foreign Court Precedent in Domestic Jurisprudence.” It included a number of speakers, including Ken Kersch, Susan Karamanian, John McGinnis, John Baker, Mark Tushnet and yours truly. Wonderful debate about Roper v. Simmons, Lawrence v. Texas, Charming Betsy and the general trend toward citation of foreign and international authority.

The most revealing comment came from Mark Tushnet on the subject of constitutional comparativism. He said, “If contemporary U.S. liberals have gotten off the rails they should get back on the rails. So what.” When asked whether this meant we might need to revisit cases such as Mapp v. Ohio, Skokie, New York Times v. Sullivan, and Roe v. Wade in light of international norms that provide lesser protections, he unequivocally said, “Yes.”