Friday, January 14, 2005

Foreign Courts and US Law

According to the press accounts, last night’s "debate" between Justices Scalia and Breyer on the extent to which opinions by foreign courts should be considered in American law was a smashing success. Admittedly I have only seen about ½ of the program, but I think I have garnered enough to comment.

As one would expect given the well known public positions of both Justices, Scalia was opposed, by some accounts, adamantly, to the use of foreign decisions in U.S. Courts. Justice Breyer, on the other hand, clearly states that while foreign decisions should never be binding on U.S. Courts, he sees no reason for engage in what effectively amounts to "judicial isolationism" by ignoring the decisions of international deliberative bodies.

Despite my rant against Justice Breyer’s majority opinion in U.S. v. Booker, I think he has the better of this argument at least in terms of persuasive authority. Let me state at the outset, before everyone flips out and fills the comments section with nasty diatribes against me, that I completely agree with Scalia with respect to the use of foreign opinions as somehow binding on American courts, or as somehow authoritative in any way with respect to our Constitution. I don’t really think there is much danger of a U.S. Court releasing an opinion in which the Judge argues that "because the French have adopted a far more stringent prohibition against government searches we now hold that the Fourth Amendment searches and seizure clause prohibits the government from doing X. See French Common Law at 57." Everyone would agree, I think, that such an opinion would be detrimental to our Constitution and that the offending judge should be impeached.

That being said, I don’t think that Breyer and others are even coming close to advocating something like the above example. A distinction lost among many non-lawyers, and some lawyers, is the distinction between persuasive and binding authority. For example, Supreme Court opinions are binding, controlling authority on all of the lower federal courts. However, a decision by the 7th Circuit Court of Appeals (even ones by Judges Posner or Easterbrook) is not binding authority on the 5th Circuit Courts of Appeals, or on a state or federal district court in California. So how is it that another court, state or federal, adopts an opinion, with respect to say an interpretation of securities law, written by Judge Posner. Simple, the other court does so, not because it is bound to, but because it is persuaded by the mertits of the opinion (as many are by Judge Posner’s opinions). In other words, the court finds that the opinion is well-reasoned, properly decided, and thus should become the law of their jurisdiction, at least until such time as it is overruled by a different opinion of a higher court. Why cannot the same be said of court opinions outside the United States? Granted the foreign courts are not necessarily going to have decided things in accordance with US law, nor are they going to be offering constructions or interpretations of US statutes, but they do offer theories of adjudication, principles of justice, fairness, and reasonableness, and propositions of normative values that might be persuasive to many jurists here. If, and only if, proper support and justification from domestic courts can be offered to support the view of the foreign court that the Judge finds persuasive, I personally don’t see a "problem" with the foreign decision being included or referenced in the opinion. This has been done by the Supreme Court both in Lawrence v. Texas, and in the recent death penalty case whose name escapes me. In neither case was the foreign law cited as the basis or authority for the decision by the Court, it was merely offered as additional persuasive evidence of a viewpoint on the particular point the Justice was trying to make.

With all the talk of globalization of economies, goods, and services the US seems at times to be unreasonably opposed to the globalization of ideas. Foreign courts often decide cases involving US persons, companies, and interests. Moreover, in some sense it can be argued that a large part of "international law," especially international transactional law, is modeled on US statutes (UCC), and common law. Therefore, to say that international adjudicatory bodies have absolutely nothing to contribute to the further development of our legal system is to my mind a bit of an overreaction. Nor do I think that their considerations somehow diminishes our national sovereignty. We are no less capable of choosing our own independent path after having considered a foreign court's opinion as we were before considering it. Even if it is citied as persuasuve authority, there is not a threat to sovereignty, as more persuasive domestic decisions could be developed that would nullify the previous result.

Again, I’m not advocating that foreign decisions be binding, or that we consider in any way what another country lawyers and judges think of our Constitution or its meaning, but I think that when it comes to abstract legal concepts (i.e., reasonableness), theories, and norms, that we should not isolate ourselves from the positions of other international adjudicative bodies. What’s the worst that happens, we find that there is nothing out there that persuades us from our current course of beliefs and conduct. So be it, at least we can say we participated with the rest of the world with an open mind.


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