Back to foreign law

Prof. Austen Parrish has this post related to his recent paper defending the use of foreign law in U.S. courts and (at least attempting) to critique the critics.

I've read Prof. Parrish's paper and I have to admit that I don't think it offers anything particularly new or persuasive, certainly not that demands commentary beyond my earlier essay on the subject (The Misguided Search for the 'One Law - and the Ongoing Struggle to Articulate it Correctly', available on SSRN), but those interested in the ongoing debate may be interested to give it a glance.

Three minor observations. First, I think that footnote 72's assertion that "[u]niformly, all agree that foreign and international law is relevant in the 'interpretation of statutes, conventions, international agreements, and so on,' and that "[s]cholars [only] disagree about the use of foreign law in constitutional cases," emphasis added, is rather overstated; it isn't by any means conceded that "foreign and international law is relevant" in statutory interpretation. I think Parrish is mislead because on the one hand, most of the cases where it has become controversial have been constitutional, and on the other, in statutory cases - paradigmatically JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure - the court hasn't been divided and the usage has been uncontroversial. But in JPMorgan Chase, for example, the court had to look abroad to decide the case, because the threshold question in the case was whether the defendant corporation was a citizen of the British Virgin Islands, a question answerable only by BVI (and ultimately British) law. But foreign law would certainly become controversial in a statutory case where foreign materials were used in the same way they have been used in constitutional cases. Second, Parrish concedes that while critics have a "legitimate concern" in that transnationalists will "cherry pick[]," he argues that they "do[] not explain, and frankly cannot explain, how this is different in kind from citation to a whole host of other sources that the Supreme Court uses regularly, tendentiously or not, without comment," after which Parrish drops a footnote to the effect that the court cites many things as authority. But what's the point here? That critics would be inconsistent if they accepted the ligitimacy of legislative history, for example, but not foreign law? I think that's dubious by itself, but most critics of using foreign law don't approve of citing legislative history either. As Parrish eventually reaches, late in his article, the debate is related to that of proper interpretative methods; I would put that point more strongly, and have done: "[t]he question of whether foreign materials should be used by courts cannot be uncoupled from the wider debate about the role of the courts and proper interpretative methods...." Dodd, supra, at 12 (emphasis added). And third, the faintly risible suggestion that of course judges should cite foreign law, because judges should explain the real basis for their decision, and if that's the actual basis for the decision, that's what ought to be cited. This misunderstands the critique quite badly, methinks. The problem isn't the ink or toner arranged on the paper in the resemblance of a citation, it's the use of the foreign material in the first place, cited or not. Or as Judge Easterbrook more elegantly put the point, "citation practice may reveal a cast of mind, and this is the source of a genuine concern." Easterbrook, Foreign Sources & the American Constitution, 30 Harv. J. of L. & P.P. 223, 226 (2006).

Parrish concludes that "in the final analysis, the Supreme Court’s use of foreign law is commendable, not illegitimate." I think it's the other way around, and nothing in his article gives me any reason to think otherwise.

Post facto:
Cert granted in death penalty for child rape case (1/4/08)