What Do Federal Courts Really Do With Foreign Law?

As veteran readers of this blog may recall, I’ve been studying the way that federal courts use foreign decisions, a hot topic since the Supreme Court cited European cases in Roper, Atkins, and Lawrence, all of which were decisions expanding constitutional protections, and all of which have been hotly decried and hotly defended for resorting to foreign law.

I thought it might be useful to get an empirical perspective on precisely how federal courts have used foreign authority in the past – specifically, the past sixty years. Despite the sturm und drang about the increasing tendency of American courts to cite foreign decisions, there is little evidence that the actual practice of the federal courts has changed much. I checked all reported federal cases from January, 1945-May, 2005 for references to decisions of a number of selected foreign high courts in North America, Europe, Africa, and Asia. I found little evidence of a trend – indeed, between 1945-55, the courts cited to foreign authority, on an adjusted basis, 130 times. In the 1990s, the courts cited to foreign authority 121 times. Between 1995 and the present, I found 145 citations. The courts most likely to cite foreign decisions were the Supreme Court and the lower federal courts based in New York City; the courts most likely to be cited were those from Canada and Western Europe.

In fact, the use of foreign decisions in American decisions is always rare, and, as I discuss in the paper, usually entirely justified. The anxieties expressed by judges and commentators about the use of foreign law reflect an obsession with the controversial tip of a benign iceberg – and not a very big iceberg at that.

Anyway, the paper is closing in on being done, it is forthcoming in the Journal of Empirical Legal Studies, and you can download it if you like here. And I very much hope you will. I mean, have you seen how many downloads leading downloadeds get? Over the past year, it’s as if everyone in my hometown – men, women, and children – dowloaded their stuff from SSRN – in the case of the leader, circa eight times each. And lifetime, more people have downloaded that lot than there are law professors in the world, by a huge margin.

Crikey. I may have to come to terms with being in the long tail of this distribution, but, first, I think I’d better try to keep up with the Joneses instead.