Friday, April 17, 2009

Notes on the Court, part III (final installment)

This is the final portion of my three-part post looking at various issues affecting today's Supreme Court.  Here is the final topic - should the Supreme Court look to foreign law in deciding its cases?

Recently, Paul Horowitz at PrawfsBlawg linked to an essay by Georgetown Prof Nicholas Quinn Rosekranz entiled "An American Amendment"  The crux of Professor Quinn's argument is encapsulated in this paragraph - "

Thus, Professor Rosenkranz proposes a Twenty-Eighth Amendment to this Constitution.  This proposed addition would read as follows:  "This Constitution was ordained and established by the People of the United States, and so it shall not be construed by reference to the contemporary laws of other nations.”

Professor Horowitz then provided three main reasons why he believes Professor Rosenkranz's argument is flawed:  First, Professor Horowitz suggests that the paper is "preaching to the choir" of those who currently worship at the church of original intent.  Second, he questions Rosenkranz' reliance on the Ninth and Eleventh Amendments, citing their underuse and subsequent reinvention when utilized.  Finally, Horowitz asserts that the essay is underinclusive, as the Court relies on a number of non-authoritative sources, foreign law being one among many.  Thus, if one is banned, why not all?

The arguments were intriguing, but I was content to let this idea rest until I saw a New York Times article about a speech given by Justice Ginsberg wherein she discussed her views on the merits of foreign law.  Justice Ginsberg stated, "“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law . . . Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?”   The justice then explained her concern that the Canadian courts are more frequently cited abroad than the U.S. Supreme Court, and lamented, "You will not be listened to if you don’t listen to others.”

Thus, while I understand Professor Rosenkratz' concerns, like Professor Horowitz, I too am skeptical.  A brief search on Westlaw reveals that the legal academy has spilt much ink on this subject.  Many of the arguments center on the propriety of of the action of the impact of such citations, but for me, the word that comes to mind is arrogance.  Why is it that other nations are almost expected to cite our courts, but the converse is not true?  I think the view expressed by District Court Judge Peter Messitte of the Maryland District Court in a 2005 speech is instructive:*

"Opposition to citing foreign law, particularly insofar as it is a one-way street (i.e., foreign courts can cite our Supreme Court, but ours cannot cite theirs), brings to mind other instances of America's arrogance  and latter day rejection of multi-lateralism. Some might say it's of a piece with the attitude of our current Government with respect to:
    - The Kyoto Accords (global warming);
    - The new Anti-Ballistic Missile Treaty;
    - The International Criminal Court;
    - And, yes, Iraq (where we're said to be engaged in an effort to democratize that country).
. . . [J]udges, lawyers, professors, and students of the law have to be vigilant. We must work to correct this short-sightedness. We need to keep searching for truth wherever we can find it. We cannot, to paraphrase John Stuart Mill, rob the human race by ignoring whatever information and wisdom foreign law."

As Justice Ginsberg stated, how can we earn the respect of the international legal community on these and various other legal issues when we do not respect what other nations have to say?  Furthermore, why be the rogue on the world stage?  If other nations ban harmful practices, such as those leading to global warming, should we permit our "rugged individualism" from bringing ourselves into line with global trends?   The world is a very big place - and due to technology - a much closer place than ever before.   Can we carry moral and legal authority abroad if we decline to *at least consider* what other nations are doing and to perhaps change our laws if they are beyond the global pale? 

In my opinion, the assumption that belies the reluctance to look to foreign law is embodied in the last portion of the quote - our courts believe that there is nothing we can or should learn from the foreign courts.  This premises seem to rest on the idea that: 1) our nation, even if imperfect at its founding, now has a perfect legal system; or 2) other nation's legal systems are so flawed as to be unworthy of our attention.  These arguments are interwined.  The position seems to assume that our nation has its law down to a science, and is no longer in need of refinement.  American law has come far from its inception.  However, there are still legal areas we have not yet addressed - and foreign law can be helpful in filling those gaps and alerting us to future gaps.  If Western European nations are more advanced in their healthcare provisions and maternity leave policies that the U.S., wouldn't a U.S. Court be remiss to not at least consider those facts if relevant to the case? 

Some think of America as a "shining city on a hill."  America does shine.  However, other nations may shine equally brightly - or even more so.  The idea that America has nothing to learn about the law from other nations is deeply flawed.  For instance, our courts are still figuring out same-sex marriage.  Other nations comparable to ours have dealt with this issue and we might learn from them as well.  Again, if we are the outlier state, we should know why and be able to staunchly defend that outsider status on the world stage.  

Finally, opponents of foreign law neglect judges' love of precedent - no matter where it might be found.  In cases of first impression particularly, judges never want to step out on a ledge unless they know there is some support - even if only persuasive.  International law can provide additional support - but probably not sole support - for a court that is trying to move in a new direction.

Of course, no one wants to see the Supreme Court only cite foreign law in its cases.  But the risk of that - if any - is minimal.  Much more likely is that they will look to the foreign courts to see what they are doing.  Even if our Court ultimately decides differently, at least the rest of the world will know we are listening, and perhaps will return the favor. 

NLS 

* The full citation is 35 U. Balt. L. Rev. 171 (2005).

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