Outsourcing Research About Outsourced Authority
An astute reader forwarded this article to me about the role that the Library of Congress plays in assisting the Supreme Court and federal appellate courts in researching foreign and international law materials:
Despite harsh criticism of the citation of foreign law in American court decisions, the U.S. Supreme Court and the federal appellate courts solicit and are supplied with numerous studies surveying foreign law each year, according to the Library of Congress’s annual reports. The source of this scholarship is the talented staff of the Directorate of Legal Research (DLR), a little known but well-regarded and highly influential research department contained within the Library of Congress. DLR is a sister organization to the better-known Congressional Research Service (which itself has an American Law Division that produces legal studies on U.S. Law)…. While Senator Jon Kyl (R-Az), Justice Antonin Scalia and others have railed against the use of foreign law in U.S. Courts (the most heated objection is to the use of foreign law to interpret constitutional rights), U.S. courts and their jurists and clerks have in fact for many years relied upon the foreign law research reports produced by the DLR…. It is perhaps ironic that in a political environment where the Supreme Court of the United States and the federal appellate courts have been criticized for the practice of citing foreign law, the Legal Research Directorate is in the business of responding to requests for large quantities of foreign legal scholarship and analysis from the federal judiciary, including the Supreme Court, in addition to Congress and executive branch agencies…. Most of the publications are superb examples of comparative and international law scholarship on subjects of public interest and importance. Because the American common law system is fundamentally predicated on universal access to the documents describing the law, one would think that the research products of the DLR should eventually become accessible. That has not yet occurred, unfortunately, except for those few documents that have already entered the catalogue, and a half dozen sample reports posted on the DLR’s public GLIN website.
Just how often does the federal judiciary rely on the Library of Congress to research foreign and international material? According to the Library of Congress 2004 annual report “Law Library staff members responded to 165 research requests from judicial agencies. Among the major issues submitted by the judiciary were those related to foreign regulation governing election campaign financing and constitutional court decisions.” (p. 31) Thus, even in cases such as the campaign finance decision of McConnell v. FEC–a decision that did not cite foreign authority–it appears the Court considered foreign experiences in rendering its decision, and relied on the Library of Congress to provide that information.
Is it just me, or doesn’t it seem wholly inappropriate for the Library of Congress to not publicize the reports that they provide to the federal judiciary? When I clerked for the D.C. Circuit, as best I can recall our chambers relied on the materials provided by the parties and amici, as well as our own individual research (sometimes in the Library of Congress). I think the parties would have liked to know if we outsourced research reports about their case to another branch of government. I can understand reasons why the Library of Congress may not wish to make certain studies they provide to the executive or congressional branches publicly available if such studies implicate national security. But it seems inappropriate that the parties and the public cannot obtain reports the Library of Congress is supplying to the Supreme Court about matters such as foreign constitutional authority.