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Tuesday, March 21, 2006 

Foreign Law and the Supreme Court

Many websites and bloggers have been buzzing about Justice Ginsburg's February speech concerning the use of foreign law in Supreme Court cases. I refrained from commenting because I felt that the issue was being explored thoroughly elsewhere.
Justice Ruth Bader Ginsburg

Today, the Washington Post decided to respond to Justice Ginsburg in an editorial. They take issue with some of the insinuations that she made. It seems like she compared those who oppose using foreign law to some shady characters. Here's the Post...
And one doesn't need to be Chief Justice Taney -- or a South African racist or an aspiring domestic terrorist -- to believe that it would be better if courts did not interpret America's founding documents in light of foreign authorities that postdate them. Justice Ginsburg has a strong case to make without stooping to such insinuations.
I agree. You can legitimately make the case for the use of foreign law. I think it's totally wrong, but the case can be made without painting your opponents as backwards and closeminded.

Both Chief Justice Roberts and Justice Alito rejected the use of foreign law when asked about the subject during their confirmation hearings. Confirm Them reproduced the relevant part of the Chief Justice's testimony...
If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he's playing a role in shaping the law that binds the people in this country. I think that's a concern that has to be addressed. The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -— because they're finding precedent in foreign law -— and use that to determine the meaning of the Constitution. And I think that's a misuse of precedent, not a correct use of precedent.
"As somebody said in another context..." Guess who that "somebody" was?

Surprise! It's Justice Scalia!

Chief Justice Roberts is pretty slick. He got that comment by all of the Judiciary Committee Democrats and their staffs. That would've been a nice talking point for them to use with their base against Roberts. "He's siding with that dastardly Scalia that we all hate so much." Missed opportunities.

As a German and Spanish attorney with practice experience in these contries, I had never heard of the question of impact foreign laws can have on a national constitution. I believe, and have seen in my international pracice, that foreign laws may become increasingly relevant to numerous disputes involving the interpretation of treaties, statutes, and other sub-constitutional law, but there is no room for its influence in interpretation of the constitution. A constitution has to be seen in the political context of each country's situation, so no German or Spanish law could possibly be helpful to interprete the US constitution.

Nadja Vietz
German Law

You've explained the point very well. There is always a place for foreign laws in US courts. Treaties especially need some foreign law context in order for judges to make sense of them. Constitutional interpretation is another matter totally.

And if you need a summer associate, I'm currently available.

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