October 15, 2008
Foreign Law in U.S. Constitutional Opinions
The issue has received some attention in the popular press and on the internet recently. These materials offer a nice introduction to the arguments--and a refreshing break from cases--for our students.
Steve Sanders, an appellate attorney with Mayer Brown in Chicago and a frequent legal commentator, posted an editorial on FindLaw last Friday. The piece, American Legal Conservatives Oppose the Citation of Foreign Law, But What About the Hallowed Practice of Citing to Blackstone?, is a short, accessible review of the arguments on both sides of this issue--a good introduction for students.
For a broader discussion of the Court and foreign policy--including material on the Court's use of foreign sources in its constitutional opinions--see Harvard Law Professor Noah Feldman's piece in the September 28, 2008, NYT Magazine, When Judges Make Foreign Policy.
(And for the apparent trend among foreign courts away from citing U.S. Supreme Court opinions, see this NYT (Adam Liptak) piece, U.S. Court is Now Guiding Fewer Nations.)
For a longer discussion--and to hear it straight from the horses' mouths--check out the 2005 program featuring Justices Breyer and Scalia at the American University, A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication.
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