30 Jun Foreign Law Watch, Kagan Edition
From the AP account of the Kagan confirmation hearing of the now presumably de rigueur question of candidates … foreign law and interpretation of the US constitution, a topic on which both Roger and I (and fifteen trillion other scholars, at least if you include those of Other Galaxies Than Ours) have written. I imagine most American OJ readers will already have seen this in some news account somewhere, but anyway.
Supreme Court nominee Elena Kagan says foreign law could be useful “for getting good ideas” when interpreting the Constitution but that justices should not feel bound by it … international law can be used as a guide, but it should not be considered binding when deciding Supreme Court cases because the Constitution is a unique document.
That’s a good non-answer.
I would rather say its a mild Charming Betsy like answer; mild in the sense of that she feels there is a possibility but no duty to apply ideas and rules of international or foreign law and use these ideas to interpret the constitution.
Quoting international law in judgments will help to get the US back on track. Particularly what international criminal law is concerned, the most crazy ideas have regularly come from US professors and the government in the last decade. One only needs to read the infamous torture memos or a bit of Dershowitz.
It seems like a substantive and technically correct answer to me. Opinions from other jurisdictions are “persuasive” not “binding.” This is how the 6th circuit, say, treats 7th circuit opinions on the same matter. Law reviews and scholarly work can also be persuasive if they have “good ideas” in them. Kagan here is simply providing a clear, textbook definition of what persuasive legal authority means.
I agree with Matt. In fact, looking back at the Supreme Court’s history, Marbury v. Madison was influenced by a great deal of foreign works, and was very much a tradition, only to be ceased in recent years (according to things I’ve read). Of course, there are a lot of people out there who hear about cases like Lawrence v. Texas and cry out that foreign law should not be cited. (Please correct me if I am wrong, but I think foreign sources were used). This also makes me want to ask, why is it that there seems to be little to nothing in legal academia to help bridge the public’s understanding of foreign law as applicable to the U.S?