07 Jul Trends in Foreign Law Citation in U.S. Courts
Rising Washington & Lee lawprof David Zaring has a nice (and somewhat brave) post up at Prawfsblawg previewing some descriptive research he has done on the citation in foreign law by U.S. courts over a long stretch of time. Here is his main conclusion so far:
- citation to foreign authority is hardly unprecedented, even in the modern era;
- but such citation, when it does happen, is limited, supportable under a number of theories of judging, and rarely applied to constitutional interpretation.
A couple of clarifying questions:
What is “foreign law”? Does that include foreign interpretations of international law? Does it include British common law?
When was the first recorded instance in David’s research (1945-2005) of a court using foreign or international law to interpret the U.S. Constitution?
This sounds like a neat project, but I’m not exactly sure in the end what David is driving at. I’m not sure that critics of the current Supreme Court’s project of incorporating foreign and international law into constitutional interpretation argue that U.S. courts should never cite foreign law. If that is his goal, I think he will end up missing his target.
I do think that this kind of study might be useful in clarifying the different ways foreign law is used, but ultimately, I think I would want to see claims of causation or trendlines. For instance, the trendline toward more usage, or different kinds of usage (e.g. constitutional interpretation), might be important. Or there is some causation somewhere — resulting from the adoption of various private international law treaties or the increase in foreign trade, etc.
Anyway, I welcome David to the blogosphere and commend him for being willing to put his research ideas in progress on a blog for sniping by people like me. I think this is a great trend, although one I’m not yet ready to embrace.
Good questions. As far as early stuff goes, there’s Frankfurter’s stuff in the Supreme Court, and there’s cases like this:
Jefferson v. U.S., 74 F.Supp. 209, 215 (D. Mid. 1947).
One trend is that there isn’t much of a trend as far as overall reference to the courts I examined – but yes, yes, I’ll break things out by the kind of law interpreted. And for that you will have to wait for the article.
I don’t think that the Supreme Court has ever used a foreign court decision (as the paramount controlling factor) to interpret certain provisions in the U.S. Constitution such as “cruel and unusual punishment” and “due process.” (Well, at least I don’t think there are any such cases. But I may be wrong.)
In recent cases such as Lawrence v. Texas, Atkins v. Virginia, and Roper v. Simmons, the Court merely cited international practices, norms, and foreign court decisions simply to SUPPORT its rulings. But it did not use these international practices, norms, and foreign court rulings as the main basis for its decisions.
On the other hand, I believe that the Court did rely — to some extent — on the decisions of foreign bodies and tribunals to interpret U.S. responsibilities under certain international treaties.