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March 20, 2006


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


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.

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.

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