Harvard Law Review Debates Roper and Foreign Authority

The Harvard Law Review has just issued its Supreme Court Review and it includes four wonderful articles by Richard Posner, Vicki Jackson, Jeremy Waldron and Ernest Young debating Roper and the citation to foreign authority. Jackson and Waldron favor comparativism, while Young and Posner express strong skepticism. Abstracts and full texts of the articles are available on the Harvard Law Review website here. A summary and introduction to the debate is here.

In her article, Jackson argues “the Eighth Amendment’s interpretive history supports the majority’s use of foreign and international law in deciding what is ‘cruel and unusual.’ Past practice, however, is only a partial answer to debates over whether transnational law should be considered in resolving questions of U.S. constitutional law, debates linked to a broader set of disagreements about constitutional interpretation. Part I below argues more generally that considering foreign and international law within a framework of learning by engagement — assuming neither convergence nor disagreement — is a legitimate interpretive tool that offers modest benefits (and fewer risks than current debate suggests) to the processes of constitutional adjudication. Part II makes preliminary suggestions for standards of inquiry in using comparative law in constitutional adjudication and raises cautions about the difficulties of developing contextually accurate understandings of foreign law.”

In his article, Waldron argues that in Roper “Justice Kennedy said that it was ‘proper’ to take foreign law into account and that referring to the laws of other countries could be “instructive” for the Court’s interpretation of the Eighth Amendment. But he did not explain the jurisprudence behind this view. Nor did the Roper dissenters articulate a theory of citation to foreign law that they could squarely refute; they simply denounced the practice. The theory that is called for is not necessarily a complete jurisprudence. But it has to be complicated enough to answer a host of questions raised by the practice: about the authority accorded foreign law (persuasive versus conclusive), about the areas in which foreign law should and should not be cited (private law, for example, compared to constitutional law), and about which foreign legal systems should be cited (only democracies, for example, or tyrannies as well). The theory has to be broad enough to explain the use of foreign law in all appropriate cases: too many scholars call for a theory that will explain the citation of foreign law only in constitutional cases. The theory has to be persuasive enough to dispel the serious misgivings that many Americans have about this practice: why should American courts cite anything other than American law? Above all, it has to be a theory of law.”

Finally, in Young’s article, he argues that “Roper’s ‘denominator problem’ concerned whether foreign jurisdictions should count in Eighth Amendment cases. Justice Kennedy’s claim that a domestic consensus rejected the juvenile death penalty was profoundly implausible given that twenty states retained the practice. But by shifting focus from the domestic to the international plane — where the United States stood as one jurisdiction against all the rest — the Roper majority made an implausible claim of “consensus” into a plausible one. Defenders of looking to foreign law typically describe that practice as a search for “persuasive authority” — an attempt, in Justice Breyer’s words, to “learn something” from a “judge in a different country dealing with a similar problem.” I argue here, however, that creating consensus by including foreign jurisdictions in the Eighth Amendment denominator goes considerably further and, in fact, gives the practices of those jurisdictions authoritative legal weight.”