Sunday, January 17, 2021

"We Are Already Comparatists"

Along with the rest of the legal world, we were saddened to learn of the death of Shirley Abrahamson, retired Chief Justice of the Wisconsin Supreme Court, who passed away in late December.  Justice Abrahamson was a trailblazer in many respects, not least because of her status as the first female justice of the Wisconsin Supreme Court, as well as its first female Chief Justice.

However, we also remember her for her commonsense understanding of the role that international and comparative law could play in deliberations at the state court level.  State court judges -- who regularly survey unfamiliar state jurisdictions other than their own -- are already comparatists, she noted in a widely quoted address delivered at Hofstra Law School in 1996. In the address, she went through the exercise of examining how a Wisconsin case on informed consent might benefit from comparative examination.  She continued:

"Why shouldn't our experiences as American comparatists embolden more American lawyers and judges to explore the law of non-American jurisdictions in the same spirit? Why shouldn't we take advantage of the comparatist instincts learned in our law schools and practiced in our courts by venturing farther afield? Indeed, we can cross the divide separating us from other jurisdictions around the world. And if we do so with the modest intent to borrow ideas on classifying, discussing, and solving a particular problem, we should not be deterred by unfamiliarity with foreign legal systems. We may fail to understand a particular system of law or even misinterpret some foreign decisions. Nevertheless, we may also find unexpected answers or new challenges to domestic legal issues."

Justice Abrahamson concluded:

"[L]ike it or not, the world is now our courtroom. The question confronting our courts as we approach the year 2000 is whether we are willing to do what it takes to be world-class players."

In recognizing the benefits of comparative law on the state level, Justice Abrahamson -- the daughter of Polish immigrants to the U.S. -- joined other prominent state court jurists with international perspectives, such as the late Oregon Justice Hans Linde (born in Germany) and Massachusetts Chief Justice Margaret Marshall (born in South Africa).

Like other jurists, Justice Abrahamson never suggested that foreign law was in any way binding, but simply that it could be a rich source of ideas. She put that intuition into practice more than once. For example, in addressing a petition from Wisconsin Legal Aid in 2011 to establish a civil right to counsel in the state, she noted:

"The importance of an attorney to real justice is recognized in numerous statutes (including 12 in Wisconsin) and decisions in the United
States and in other countries. The European Court of Human Rights and many other countries grant a right to counsel, in one form or another, in
civil cases. At least forty-four countries do so."

The Wisconsin Supreme Court ultimately denied the petition while approving creation of a pilot program, but advocates have continued to press the issue through subsequent petitions, legislative efforts and litigation, including through appeals to comparative law. The media has picked up the issue, noting (comparatively) the successful impact of New York's civil counsel program in preserving housing for low income people.

As Chief Justice Abrahamson recognized, comparative law, whether foreign or domestic, can be both a source of ideas and a powerful motivator. We mourn her passing.

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