Consulting Foreign Law

Justice Ginsburg recently gave a speech in which she offered a qualified defense of the practice of consulting foreign law. The speech has already received exceedingly intense criticism. In fact Supreme Court references to foreign law have produced some of the most passionate criticisms of the Court in recent years. This is itself a bit of a mystery. (Maybe some people think, wrongly, that the cautious practice that Justice Ginsburg defends will mean that the United States will "lose its sovereignty"?)

In any case Justice Ginsburg's remarks may well be on track. As she emphasizes, the decisions of foreign tribunals may well provide relevant information. As Eric Posner and I have discussed (in a paper available on the website of the AEI-Brookings Joint Center on Regulatory Policy, and forthcoming in the Stanford Law Review), it is possible to formalize this simple intuition by reference to the Condorcet Jury Theorem. 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 Jury Theorem provides a hint about why and when large groups can be "wise.") If thirty state courts have chosen to do X, and if no state court has decided not to do X, it might well make sense for the thirty-first state court to do X too. So too at the international level: If fifty national courts have chosen to do X, there may well be reason for the United States Supreme Court to do X as well.

The beauty of the Jury Theorem is that it helps explain why it might also be a mistake to consult foreign law. If most nations are likely to err, then there's no reason to pay attention to them. If other nations are relevantly different, they're best ignored. (Some theories of constitutional interpretation, such as originalism, suggest that they're relevantly different most of the time.) And if other nations are just following one another, they're not making independent judgments, so the Jury Theorem doesn't apply.

The relevant considerations can be turned, without much difficulty, into a framework for analyzing when state courts should pay attention to the courts of other states, and so too for national supreme courts. (Eric Posner and I try to do that.) It wouldn't be senseless to conclude that state courts should generally consult other state courts (even on the meaning of state constitutions), and also that the United States Supreme Court should generally refrain from examining other nations' judgments (at least if the question is the meaning of our national constitution). But this is not an obvious conclusion, and it is at least illuminating to learn (as we try to show) that some national courts seem to follow an implicit Condorcetian logic in their own practices. The very fact that it is pretty standard to consult the practices of other nations suggests a  Condorcetian reason for doing exactly that.

Of course there are many complexities here. But the underlying question is not a simple one, and if it is properly analyzed, it is hard to justify the intensity of the opposition to Justice Ginsburg's cautious position.

Comments

[josh]

even more troubling are the partisan calls lately for impeachment for conducting the type of analysis Prof Sunstein says may be "right on track."

[JohnLopresti]

I will take some time to read the paper carefully.
Opening thoughts: as several commenters mention, disproportionality between US and other societies can figure in the degree of resistiveness to the concept of loose interrelation of nations' corpora of laws, though, we have commerce.
The politicians at the top of the government doubtless reject broad overt acceptance of political crime prosecutions based in fora with nonUS norms.
And the less historians among us exhibit the usual array of misgivings.
In several oblique ways argument in Hamdan this week stirred many relevant issues; the nationlessness of a foe; the weak standing of a charge of conspiracy vis a vis international law of war. There may have been submerged in that discussion at SCOTUS concern regarding a substrate based upon the "provocative" theory of the executive as a gestalt. To me the probing of Geneva concerns at SCOTUS appeared a fragile yet necessary moment, as the bounds of law continue to relate to the society within which a decision has context.
Something about the math of the range between your 50% and the endpoint 100% elicits a smile, like perhaps the diaphanous asymptote a minority whip incessantly pursues in a legislature, though a congress ostensibly is less perfect than the court. It seems we have touched all three branches in this short remark. Now for the delightful work of study of the downloaded paper.
Regards,

[Kimball J. Corson]

James writes:

"The [rest of the] civilized world has been ahead of us before - and behind us, and simply incoherent."

I respond:

Exactly. We need to be able, with good judgment, to figure out which and when and then proceed critically and accordingly.

[Kimball Corson]

I believe that the dictum of Justice Scalia that “judges are unqualified to give the peoples answers to moral questions” is simply nonsense. If that were true, most judges and Justices should resign. While it is similarly fashionable to say morality cannot be legislated, that too is largely incorrect. Morality, in the strictest sense of the word, deals with that which is regarded as right or wrong. That is arguably the core business of the law, especially when we get it correctly as we often do. Indeed, we back it up. Do wrong and sanctions will follow. Do right and you’re in compliance.

What Justice Scalia should have said is, do not rule on moral matters in ways that are contrary to popular moral judgment or enforcement problems will ensue. Even then, however, as with Brown v Board of Education, and integration of the armed services, people tend to come around.

[George Liebmann]

The suggestion that there is anything empirical about the use made of foreign law in Roper surely must be humorous, since in that case, in rhetoric if not result the most extreme instance of judicial activism, the Supreme Court expressly proclaimed itself a moral arbiter. Foreign law is relevant in many contexts, and has often been referenced, notably in Muller v.Oregon. Its value in constitutional cases is as an inducement to judicial and intellectual humility, in reminding judges not to confound the familiar with the necessary in reviewing the actions of legislatures. Prof. Sunstein and others would transform a shield into a sword. Foreign law may justify a court in upholding legislative choices as not beyond reason. The fact that a foreign legislature or court has seen things differently from an American legislature does not make the legislative judgment irrational. It is simply absurd, if capital punishment is to be upheld at all, to say that its purposes--incapacitation, retribution, specific and general deterrence--are not served by executing 17-year-olds. The court reached its conclusion by throwing foreign law into the scale in weighing competing values the weighing of which is a legislative, not judicial function. When Holmes declared that "the law is the external expression of our moral life", he was referring to the law as declared by legislatures, not the moral intuitions of highly unrepresentative judges.
To invoke foreign law as it was invoked in Roper is in effect to express a preference for the moral life of foreign countries to that which prevails here. American judges have a right to entertain that preference, but not to impose it.

[Kimball Corson]

The problem with George Liebmann's interesting position is that courts often have to decide what the law is on questions that crop up before them, whereas legislatures too often just react to ground swell issues, lobbyists’ concerns and pork bills. But where legislatures disagree with court decisions, they can usually fix that with corrective legislation, although in Roper, where the issue was constitutional, the legislature’s hands may be well tied. That being true, George’s position on using foreign law in such a contexts takes on greater weight, at least to the extent that there was developed contrary American law beforehand that reflected our considered views.

That does not make “our” law right, in a moral sense, but it does make it our considered decision, and arguably not one to in effect be overturned by a foreign tribunal or its thinking. I am not sure that what I suggest here should be a formal limitation, but it should be considered as a limiting concern where applicable, as I think about it.