Why not be influenced by other nations?

ARTICLE: Obama nominee touches a nerve in conservatives, By Joseph Williams, Boston Globe, April 21, 2009

I know this bit really offends the constitutional purists, but I like a guy (both for State and possibly the Supreme Court) who says American law should be willing to take influences from other nations' law and international law. To me, that's an essential harmonization issue that cannot always be slated unidirectionally.

Of course, even the purists would have to admit that we got our original laws largely from other nations, with big influences being Britain and the Dutch, John Locke, etc., so arguing for a firewall now strikes me as ahistoric.

FWIW, I made this argument in Great Powers too.

(Thanks: j ryan)

Comments

[William R. Cumming]

The great tradition of the "common law" derived from England and dominating US legal thinking for 400 years as opposed to Judge made case law or civil code systems (and ours has become much more a civil code system than most non-lawyers know) is based on the notion that in the case before them Judges should reach for whatever information they can that will enlighten them and make for better judicial opinions. Example, the so-called Brandeis brief that heavily influenced the court to rule Constitutional child-labor laws was not premised on traditional legal thinking or case law but in fact expert sociological evidence. Our hope is for progress of mankind and the judges should never think that all that is good and carefully reasoned is only invented in the US. Justice Ginsberg recently defended quite ably use of international law and norms in a speech. Here's to more clear thinking on the Court not just Pavlovian response to norms that if followed will result in destructive practices being adopted by our democracy.

[Bill]

Being influenced by other nation's laws is fine - as long as it is done by Congress. To say that the US got its original laws from other countries is missing the point. We are a nation of laws, and as such should be run according to what the Constitution, ratified treaties and laws that have been passed say. The founders intended the judicial branch to be the weakest branch, not to be able to do whatever they want. An unchecked judiciary sounds more like Iran than the US.

[Mark]

The problem with looking to other nations for judicial decisions is two-fold. First, those advocating for rulings following international law by US courts are suggesting that our courts should look to laws not passed by U.S. legislative processes. In essence, the courts can avoid the legislative process for law creation and implementation. An example of this would be to rule in favor of limiting gun rights due to the fact that European countries have more restrictive gun laws than the US.

Second, nobody advocating this position suggests WHICH international rulings the courts should follow. In essence, a justice can pick a law from another country or group of countries that support the position that the judge personally holds as opposed to what US law says. It turns the judges opinions of "what should be" into law as opposed to letting the judge rule on what US law currently says. Also, individuals suggesting the courts use this practice might be unpleasantly surprised which countries laws gets cited when using the process.

[zenpundit]

Seeing a practice in another nation, say regulations relating to drug approval, and proposing a bill to adapt it to an American setting is reasonable.

Looking at the body of international law in regard to treaties and customary practices between states is also reasonable,though treaty amendments by the Senate automatically take precedence. Interpretations of international law or treaty clauses by the executive should be given a huge amount of deference. Most judges are actually poorly versed in diplomatic history and international law, and unless they previously specialized, a career lawyer at State or DoD probably knows far more.

Cherry-picking odd rulings from dissimilar societies because a Judge likes how the Japanese do gun control or how the Germans regulate political speech, and the unenlightened masses are too backward to let Congress vote laws that creatively end run the Constitution through, ain't ok.

As the least democratic branch of the government, the power of the judiciary rests on its authority of being seen as the legitimate and impartial arbiter. Without that, the judiciary is at best another kind of difficult to check and balance legislature, or at worst, is viewed as tyrannical by the losing side who will then up the ante to using the legislative branch to circumscribe the jurisdiction of the courts, start constitutional amendments and other high stakes political conflict.

People will demand a say in major changes of rule-sets that affect their lives and they will get it, after the fact if necessary.

[Joe Michels]

There is a difference from deriving a law from other governments with other ideas, and being forced to adhere to international laws just because some international body like the UN has "passed" a law.

If the congress thinks an international law is good, then make a bill and get it passed and signed by the president. Then it has been "accepted" by the American people and not forced upon us in some other none democratic fashion.

[stuart abrams]

This kerfuffle strikes me as particularly silly. In a common law system, judges are regularly called upon to provide meaning to statutory or constitutional phrases that are broad, vague, cryptic, or even contradictory. In carrying out this function, judges routinely look to a wide range of sources, including most often legal commentators (including "foreigners" like Coke and Blackstone) or law review articles, but also including diverse materials such as social science, philosophy, and fiction. The Supreme Court once got into a mini-debate as to whether or not "King Lear" was supportive of the conclusion that illegitmate children were entitled to constitutional protection under the Equal Protection clause. Even nursery rhymes often find their way into judicial decisions. Justice Rehnquist once started an opinion by reciting "The Noble Duke of York"; according to wikipedia, Humpty Dumpty has been cited in roughly 250 judicial decisions. No one is suggesting that foreign laws "bind" US courts. However, foreign laws strike me as a resonable source of wisdom and experience that US courts should think about in carrying out traditional common law functions.