« March Madness and Network Neutrality | Main | The Posner-Stone Debate You've Been Waiting For »

March 20, 2006


Feed You can follow this conversation by subscribing to the comment feed for this post.

Scott Scheule

Well put, Professor.


There is no doubt that reference to foreign laws and court decisions can be valuable in making US law, as evidenced by the Sunstein/Posner research.

The key question is WHO should be doing this. That's where the Breyer/Ginsberg logic breaks down. In a constitutional democracy, it is the role of the legislature to make the laws and the judiciary to interpret them. The use of foreign legal sources (except in obvious cases such as interpretation of international law, treaty obligations, etc.) is really of little use in interpreting US law, although its not hard to imagine an exception, such as a case where Congress was trying to emulate a foreign law. In comparison, the study of foreign laws and court decisions can provide a good deal of insight in the making of the laws.

The fact that the US Supreme Court has selectively referenced foreign decisions in some recent, highly controversial cases interpreting the US Constitution, and apparently gave these foreign decisions more importance that the text, structure and history of the US Constitution in reaching their decision, is probably behind the strong reaction to Justice Ginsberg's remarks.

Equity Private

You comment that: "In brief, the Jury Theorem says that if most members of a group are more than 50% likely to be right, the chance that a majority of the group will be right approaches 100% as the size of the group expands." The point I think you then venture to is that this can be extrapolated into helping justices get the decision "right."

I have several concerns with this approach. First, we aren't talking about juries here, generally, or if we are than that's an area I'm not concerned with. What we are talking about is appellate processes, the realm of Justice Ginsburg.

Any law student should know, at least by the second year, that there isn't necessarily a "right" or a "wrong" in a decision. Strict liability, for example, often results in awards in the absence of negligence. A "wrong act." Fairness would suggest this is a "wrong decision." The economics often end up with a "right result." Which is the proper decision? What would "the masses" say?

So far, consulting foreign practices in the context where it seems to generate the most criticism (and has the only arguable utility) seems to have been an effort to codify "global practice" with the argument that bringing U.S. legal practices (on human rights/torture for example) in line with the "global majority" is a good idea. Of course this superficially appealing idea breaks down when one remembers the many examples of once seemingly radical legal concepts that have become mainstream. (Civil rights, woman's suffrage, etc.) Bringing consensus into the argument, particularly global consensus, is a silly thing unless we are looking to enforce a global status quo. Surely you would not argue that bucking the global consensus was a bad thing here?

There are other difficulties. How should such things be weighted? Which courts should we look to in order to guide us? Surely the only meaningful measure is by population. Picking and choosing on any other metric (say, only those jurisdictions with "compatible" political systems) is a farce. (A new definition of jurisdiction shopping in the making? Shall I use France when it supports the result I wish, and China when that is the better pick?) Well, what impact, then, will Chinese courts' views of human rights and the right of assembly have on deliberations in the Supreme court here?

A dangerous path, this.

Frederick Hamilton

Thank you Professor Sunstein for the thoughts on federal courts consulting foreign law.

I agree with those that think Justice Ginsburg is on the wrong track. In fact I am having a hard time squaring a lot of what goes on in the federal judiciary with our constitution. Constitutional law at least until this new court seemed to hinge on what federal judges want the constitution to say and not on what it really does say.

It is obvious to a non-judge that you can’t base any decision regarding the death penalty for instance on what the law in France on the death penalty might be. Why not? Our constitution was adopted by we the people of the United States and is subservient to we the people. None of us has a say in French law. We don’t vote in French elections. Their laws are meaningless and irrelevant as it relates to our constitution.

Could there be a case where French law impacts America? Sure. If a French commerce law impacts a United States corporation, I can see where a court might try to adjudicate a problem with an American company doing business within France and trying to comply with French law that puts the company in violation of American law, for instance. Save for that, there is no need to be considering what French law says about gay marriage or the death penalty, et al.

The talk of consulting foreign law quickly brings me to the subject of a “living” constitution. Supreme Court Justice Scalia derides the notion of a living constitution. He agrees that it is a constitution defined by an L word. He correctly states it is a “legal” document not a living document. He is right. The constitution has words. Words have meanings. The legal document called our constitution can be changed, but not by the whims of nine members of the U.S. Supreme Court. The Supreme Court must pass judgment based on the wording of the constitution not on the mores of judges or the thoughts of the Danish Supreme Court.

What disturbs me most is the thinking that the final word on constitutional law is determined by the U.S. Supreme Court. The final word on constitutional law is “we, the people”. We are a nation of laws of the people, for the people and by the people. Retired Justice Sandra Day O’Connor laments that Congressional representative’s proposals, and their sometimes uncivil tones (to her interpretation), poses a danger to the independence of the judiciary, and the freedoms of all Americans. It is vainglorious of her to think the judiciary is independent of we the people?

Our three branches of government are co-equal. All three branches of government however are inferior to “we the people”. It is we the people who will decide if we should become a society that allows same sex marriage. It is we the people who can tell the U.S. Supreme Court what they can and cannot decide. What they can and cannot adjudicate. We have the ultimate authority to make those decisions. We the governed, control the government. All three branches. Period.

Justice Scalia is correct when he says, “judges are unqualified to give the peoples answers to moral questions”. Yes indeed. We the people will decide on gay marriage. We the people will ultimately decide when a life begins and when that life may be extinguished. We the people some day may decide that deficit spending is wrong and enact rules that mandate an end to such a situation.

We the people may do this through our freely and legally elected representatives (representing “we, the people”). Or we the people may amend the constitution so as to have a society and a rule of law that we the governed decide is morally correct. Not nine justices who have no higher or better thinking on what is moral and just than your or I. It is high time for judges and supposed constitutional law school scholars to realize that we the people enjoy superior status to any branch of government, including the judiciary.

How that concept could be lost on bright judges and law school professors is indicative of their egotistical hubris. Every once in a while we need to hit the mule over the head with a two by four to get it to focus on the truth as articulated in our wonderful constitution. We indeed are: “One Nation under God, indivisible, with Liberty and Justice for all.” If need be, we the people will codify “under God”. A government of the people, by the people and for the people. Not a government for the will or morality of judges. A government for the will and morality of we the people.

It is important that all three branches of government respect the inherent wisdom of our group society (read the citizens). Per your Jury Theorem our society has expanded to a large size indeed (hundreds of millions). Our group society accepted a civil war (appropriately). It accepted the Voting Rights Bill. It embraced Medicare and Medicaid. In short, I don’t think your large group theory has failed America. If federal courts cannot confine themselves to correct interpretations of the constitution (as determined by our group society), then it will be necessary to instruct the federal judiciary just what exactly we want in our constitution. Consulting foreign law, Kelo decisions, under God, et al may be the impetus for we the people to act. We’ll see.

Also, could you please explain how so many constitutional experts could get the Solomon Amendment so wrong? Sadly I have been reading how, of all places, law schools are now trying to figure out how to circumvent the recent 8-0 Supreme Court ruling instead of simply doing what we the people do every day: obey the rule of law. Solomon might be time for that two by four; take your federal money away.


It may be that using the Condorcet Jury Theorem as a guide makes sense when a state supreme court must adopt one of two positions (e.g., comparative vs. contributory negligence) given that there are fifty states and a shared common legal heritage. But, it is much less clear that such a proposition should apply internationally. Functionally outside of the U.S., there are only a handful of major truly democratic legal regimes in the world--Canada, Australia, New Zealand, Japan, possibly India and, finally, Europe. I lump the European countries together as a single democratic legal regime because most critical decisions are made either by the European Court of Justice (for the 25 members of the European Union) or the European Court on Human Rights (for the 46 signatories of the Convention creating the Court.) Thus, there are not many democratic decision makers, but only a handful which certainly militates against excessive reliance on the Condoret Jury Theorem.

For example, in Lawrence v. Texas Justice Kennedy cited several European Court of Human Rights decisions prohibiting discrimination against gays. But, those decisions reversed contrary decisions by several European national courts which had upheld various restrictions (gays in military, gay adoption etc.) There is now a uniformity of result in Europe on prohibition of gay discrimination simply because the court of final decision has spoken but it is not accurate to say that this is the uniform position of each of the various european countries. So, one cannot count all european countries separately in making the Condorcet Jury Theorem calculation on prohibitions against gay discrimination. (Incidentally, I don't mean to suggest by my use of Lawrence as an example that I think it was wrongly decided. I think it reached the right result, although I would have preferred basing it more on White's concurrence in Griswold v. Connecticut.)


Ginsburg is CFR. That speaks for itself.

Chenyun Zhu

Quoted from Equity Private:"that there isn't necessarily a 'right' or a 'wrong' in a decision".
That recalled me a lectured delivered by a famous Stanford history professor. He was asked what truth is and shooted out reply without any histation:"If you can prove it,then it is the truth." Startlingly, human's history is geared by the masses, hinting the WISDOM by the larger group.
Two instances:
1. If 50%+ are on the wrong path, a new stunning policy or law robust may be terminated or put into pending. Suppose the new stunning policy or law will direct us to right if executed.
2. If 100% are on a path(no adjectives are applied), all the common requirements raised from 100% will surely be 'customized'--named as democracy and liberty. Ask ourselves whether the consequence will be retroacted. Ask ourselves whether politics exist then.
NOTE:I don't think Justice Ginsburg is on the right track.

Kimball Corson

Such arrogance. To think we have a lock on all good jurisprudence. While not binding precedent, foreign law ought to be as readily considerable as the law of another state, subject to the proviso that any underlying or implicit conditions not be unreasonably inconsistent with our own jurisprudence. This should be a no brainer, but such is our arrogance and xenophobia.

In America, we never have clearly gotten too far past the idea that those different than us, when commingle in one or another manner, are really only 3/5th of one of us, Arabs included. Indeed, our government keeps a running tally of our own dead in Iraq, but not even a 3/5th tally of dead Iraqis. A continuing sad state of affairs, in my book.

Inasmuch as I live abroad and travel a lot, from what I observe, maybe a 5/3rds rule might be closer to the mark.

Kimball Corson

A quibble. Cass Sunstien references the ". . . Jury Theorem [which] says that if most members of a group are more than 50% likely to be right, the chance that a majority of the group will be right approaches 100% as the size of the group expands." This overlooks the effect of delusion and delusive persuasion. Where facts are more difficult to discern or ambiguous and/or conflict arises (as in jury deliberations), delusion can take hold and have a majority get it conspicuously wrong. Arguable examples here include bandwagon effects, Johnstown, so many religious denominations in America or indeed, religions, in the world, “the emperor has no clothes on,” the Third Reich, the O.J. trial, the justness of Israel’s, Britain’s and American’s historical policies toward the Palestinians, White house and Republican attitudes toward the Fourth Amendment where NSA surveillance activities are in question, etc., etc.

The power of people to believe what they want to believe, sometimes even when the facts are clear, is absolutely incredible at times, even in larger groups. The will to believe what suits is very strong and can be subtle in its effects. Too, group delusion is self-reinforcing and protectively isolating.

The effect of delusion cannot be ignored.

Kimball Corson

Who says courts do not make law. Conservative and liberal courts make law everyday. It is a staple of their business. Legislation is never definitive. It is indicative and courts are left to make and flesh out the law within that framework. A contrary view is naive and ill-considered. Besides, where the legislature does not like a judicial result, it can and often does, fix it.


I have trouble seeing why this is even controversial. Judges freely refer to a variety of information sources in making their decisions: law review articles, treatises, social science, historical experience, etc. It would be troubling if they used foreign law as binding precedent, obviously, but as a source of information it is completely benign.

Would our jurisprudence be better if it didn't allow for passages like this (from West Virginia Board of Education v. Barnette):

Ultimate futility of such attempts to compel coherence [in this case, flag salutes] is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies [the Axis powers]. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

Note that Justice Jackson has drawn a lesson from the laws and experiences of other countries. In substance, this is all that anyone wants: the ability to learn by example and not by costly experience.


It may be helpful to recall the difference between a state court ruling on a matter of, say, tort law and a federal court interpreting the US Constitution. In the former case, looking to the way a foreign country handles a legal problem may be very useful. In the latter, the court is supposed to "interpret" the Constitution, and its interpretation binds the legislature (Congress) and executive. The legislature cannot just "fix" a misinterpretation of the Constitution the way it might change a poorly decided common law case. If we believe that all the a court is doing is legislating when it interprets the Constitution, we should just tear up the Constitution and go to a system of congressional supremecy, as they have in England.


ADR - I can't help feeling that's a bit of a straw man. Sunstein and Ginsburg do not, as far as I know, believe that all the Court is doing is legislating. In fact, I think the Court might find certain information useful even if it is merely applying precedent. To simplify, in some circumstances a law is permissible only if it is narrowly tailored to its purpose. Imagine that another country has a different approach that appears to be much more narrowly tailored and that works well. This would seem to indicate that the government's approach is not narrowly tailored to its purpose (it could achieve the same result without as much intrusiveness). Of course, relevant differences between that other country and the US should be considered, along with a lot of other factors. Still, if other countries have been experimenting actively for a long time and we have not, a lot of useful information might be out there. We will benefit if judges are allowed to consider it.


James, you make a good point when you illustrate how citation of foreign PRACTICES may be of some benefit in that we can show, for example, that there is a narrower way of accomplishing a goal and that, therefore, a law does not meet the criteria that the most narrowly tailored means be employed.

In this case,however, (not to mention your very apt citation of Jackson above), the Court is looking at foreign practices rather than relying on the ratio decidendi of foreign cases as though they were on the same par with the US Supreme Court as one state supreme court is with another.

Now, contrast your very elegant examples with the Court's use of foreign law in Roper. In Rpoer, the the Court invalidated a practice employed in what I believe was a majority of states (or nearly), in part because foreign practice condemned it. That was an example of the court using foreign law to displace US practice as an example of what is considered unusual punishment.

This isn't a straw man, but an actual recent use by the court of foreign practice. If the use of foreign law was cited in the reasonable and circumspect way that you suggest, I don't think it would be the issue it is. I think the Court's recent use, however, is more eggregious than your example suggests.

Kimball Corson


In Roper, perhaps what foreign law was doing was holding a mirror up to us in order to let us see our own barbarity, an aspect of us in regard to which we are far too blind, but the rest of the civilized world is most observant. We were on the short end of what is arguably a moral consensus, as too often we are in the view of the rest of the world. We may be a Christian nation and very religious, but that does not come close to making us a moral or compassionate nation, unfortunately. We delude ourselves and have huge blind spots, as I see it, from living abroad and listening to others.


Actually, I have to agree with ADR on this particular issue. It's not useful to import values, as opposed to reliable information, from foreign sources. I have in mind a country with a lot of experience regulating something that we are just beginning to regulate, or perhaps a law that has come about independently in many countries and seems to work.

A "moral consensus" that seems to exist in the rest of the world doesn't give us useful information about our own laws. To clarify, though, I don't think Ginsburg and Sunstein are defending that use of foreign law. They're making a very modest point: foreign laws can contain useful information and shouldn't be automatically excluded from consideration.

Kimball J. Corson


To the extent that ideas of natural law have some validity, foreign values can be at times helpful as well in specific contexts. An emerging moral consensus is connected to some of our law to at least that extent, which is considerable. Some of the civilized world is ahead of us in some significant quarters, I believe. I see therefore no reason to set preconceived limits on what might or might not be importable. Case by case and idea by idea seems a better approach. Why are we so zenophobic and ready to impute so much relative ignorance to the rest of the world? I submit our biases are showing.


I would like to illustrate personal pieces from a side angle.The topic of this thread goes with the consent or defense on consulting foreign law. Following phrases:directly import values, arrogance and global practice, have been applied in messages.
Law emerged as conflicts yielded from people's view on droit, justice and many other countless factors implicitly making explicit impact on history course were supposed to be conciliated by it. As there exists gap, in civilization and market economy for instance, the most fast-developed country(in one aspect sometimes) legislate in advance. There is no precedent and no foreign law could be consulted. Legislators legislate while they make truely a lot of consideration. As a fusion of current social status, state priority and cultural background, the actual consequence comes from the attributes of the law and execution, which might be get wrong. Some nations among the rest may come to common convergence the most fast-developed country once experienced. Law correlated will be legislated. Legislators, entities willing to benefit from precedent(failure or big success), consult foreign law, for the target at dodging bias, fever heat and self-delusion. Local legal practice and territory factors factories the iterative result. It is unknown whether the most fast-developed country do the legislature right. Knowledge is scattered globally and mastered in independent people. Law contains predicate, logic and shares with anthropology, religion, politics and so on. Globally profound investigation, OUT OF THE SCOPE OF LAW, leads us to think thoroughly on the very basic elements. The newest generation lives with the newest laguage framework. The most dangerous disadvantage is the connocation and implication is blocked. To the most fast-developed country, the rest are mirrors. A person is out of awareness whether there is stain on his his without looking into reflection.
I am not advocating directly importing or applying. I am not correlating jury theorem. Let us be cool down.


There hasn't been a law system appliable to all. Because of domestice terminology?
Enough to consult foreign law?


The Condorcet Jury Theorem holds true only if each member of the group makes an independent judgment. We would expect, then, that at best Prof. Sunstein's theory would allow a U.S. court to consult foreign law to check the "correctness" of an independently reached conclusion. If the court instead consulted foreign law to reach its conclusion, the fundamental assumption of the justifying theorem would be violated. If a U.S. court is not acting independently, then there is no guarantee that the foreign courts on which it relies are acting independently. And therefore, even under the Condorcet Jury Theorem, a U.S. court should not “conform” its decisions to foreign law.

Frederick Hamilton

This is becoming surreal. I think Lewis Carroll’s Through the Looking Glass sums up foreign law as it applies to the United State Constitution:

"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean - neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."

Indeed, federal judges and law school professors can make “words mean so many different things.” We ordinary citizens are not quite that smart.

There may come a day when the public has had a belly full of the vagaries of the wordsmiths. When that day comes, we the public will instruct you learned ones about using foreign law to tell us what to do. We the public will provide a definition of “public use” so that private land is really protected as envisioned in those unclear fungible words of Amendment V. We will be happy in our crude way to define for those of you unable to grasp the concept of marriage, what it really is. I think it is about time for we the people to stake out our thoughts and explain to our representatives and OUR “independent” federal judges what we think about these oh so difficult decisions like foreign law in our courts, taking our private property, coming to a decision on whether Bob can marry Jim and Sally can marry Elizabeth, what parameters other than Roe v Wade apply to abortions, the death penalty, spying on the enemy in a time of war, “under God” and the like.

Clearly (through that murky looking glass), our jurists and law professors are in a hell of a quandary of what to make of it all. Just possibly with some well thought out laws and amendments we the public with our crude version of the Jury Theorem could help all of you make sense of it.

Cass Sunstein

Many thanks to all for these good comments. Many of the objections are explored in some detail in the Posner-Sunstein paper, available at the AEI-Brookings Joint Center on Regulatory Policy website. We discuss, for example, the relationship between originalism and our argument; the differences between factual and legal judgments; the possibility that nations are not making independent judgments; and the possible differences between the domestic and international cases. It's hard to capture all the complexities in a post! I'm sure we don't discuss these issues adequately, but those interested in a more detailed treatment can obtain one in the paper.


Kimball - I don't know what zenophobia is, but I'm zenophobic if it means that I'm skeptical that natural law is accessible through international popular opinion. The civilized world has been ahead of us before - and behind us, and simply incoherent.

Frederick - You seem to think that the law is a sort of approximation to simple intuition, and that legal scholars are a self-appointed elite who frustrate common sense and the will of the people. I would point you to Kyllo v. US to see how difficult and counterintuitive the law can be. What is obvious to you about marriage may have been obvious to Virginians before Loving v. Virginia. As Keynes said of economics, law is "a difficult and technical subject, but nobody will believe it."

Frederick Hamilton


You are right. The more I thought about my response regarding foreign law the more I agree that it is easy to criticize and much more difficult to arrive at the correct end point from a purely legal standpoint. The words in our constitution will result in quite bright and “learned” people arriving at different end points. I shouldn’t have been so contentious.

I guess the point I am really trying to make is that although law isn’t intuitive, it does require those being governed by the law to buy into the final decision. When those difficult decisions seem to the vast majority of the citizenry to be one they can’t abide or live with, there is nothing wrong with the decision reached being changed through legislation (new laws limiting jurisdiction for instance on “under God” in the pledge, or quite possibly proscribing any reference to foreign law in court decision making) or passing constitutional amendments (forbidding same sex marriage for instance).

I agree that legislation and the constitution may require a certain judicial outcome based on the wording of the law or constitution. If the issue decided is of enough importance to Americans, we do have a way to change the law and the constitution to ensure a decision that the vast majority of people can live with. This brings me to my end point, that the final arbiter of the constitution is not the Federal Judiciary, Congress or the Executive (all co-equal branches of government) but we the people. We in the end do get the final say and are superior to any of branch of government. As a non-lawyer to me this fact is incontrovertible but seems to carry some disdain and disagreement within the Courts, Congress and the Executive.


Equity private says, "Justice Scalia is correct when he says, 'judges are unqualified to give the peoples answers to moral questions. Yes indeed. We the people will decide on gay marriage. We the people will ultimately decide when a life begins and when that life may be extinguished. We the people some day may decide that deficit spending is wrong and enact rules that mandate an end to such a situation."

Based on that logic, Brown v. Board of Education, and any other law reversing plainly unconstitutional laws passed by "we the people", are wrongly decided. Hmmmmm.

The comments to this entry are closed.