What’s so wrong about looking to foreign law?

An Australian correspondent writes, in response to my post yesterday

What’s surprising to me as an Australian is that there is any controversy at all. There’s a huge difference between looking at various sources for examples of reasoning and acknowledging established local precedent as representing the law. From 1st year our students are taught the difference between persuasive and binding authority. Isn’t it healthier to be transparent about the reasoning process rather than pretending that judges aren’t sometimes influenced by personal ideology or politics or God forbid, high level judicial reasoning from othe jurisdictions with a common legal heritage?

He also reminds me of a law review article written here in the States over ten years ago that, on the same grounds, questions the basis for any objection to using foreign law for guidance in making U.S. law.  In “All the World’s a Courtroom, Judging in the New Millennium,” 26 Hofstra L. Rev. 273 (Winter 1997), Shirley S. Abrahamson and Michael J. Fischer opened with the description of an oral argument in a case before the Wisconsin Supreme Court:

In the . . . case, the defendant, a one-time farmer who had been diagnosed with Alzheimer’s disease, struck and injured the head nurse in a health care center where he was confined. The court was asked to resolve one issue: Should the farmer be judged by the traditional tort standard of the reasonable person, or given that he was not capable of either controlling or appreciating his conduct, should he be absolved from civil liability altogether? 

In most states, including Wisconsin, the courts ha[d previously] concluded that a mentally disabled person must be held to the same objective standard of care as someone without such a disability. Thus the mentally disabled are generally held liable for their acts under the reasonable person standard.

American legal scholars have sharply criticized this traditional American rule. They point out that applying the reasonable person rule to people with mental conditions, in effect, imposes liability without fault, even though the law of negligence is ordinarily grounded in fault, and even though liability is incompatible with modern views and treatment of the mentally ill. 

Counsel for the farmer urged the Wisconsin Supreme Court to adopt a rule that persons should be held liable only when they know what they are doing.  And like most lawyers urging a court to adopt a new rule, counsel for the farmer sought to reassure the court of the wisdom of change by pointing to law from other jurisdictions, specifically Florida  and Canada, which seemed to buttress her point. If the new rule works there, her reasoning went, then surely it could work in Wisconsin.

Florida, the Canadian case was an entirely different matter altogether. “Petitioner is not aware,” the brief noted archly, “if Canadian case law has precedential value in the United States.” 

Counsel, of course, knew quite well that it does not. But by the same token, neither does Florida law have precedential value in Wisconsin. Why then did the nurse’s counsel single out Canada? Probably because the law of foreign countries is treated today with the suspicion that may have once marked some state courts’ approach toward the law of their sister states.

Today our state courts accept the logic behind Justice Cardozo’s famous remark, in a case involving New York and Massachusetts law. New York is “not so provincial,” Cardozo wrote, “as to say that every solution of a problem is wrong because we deal with it otherwise at home.” But while state courts routinely look to the decisions of their sister jurisdictions for the insights and persuasive value they potentially possess, the nurse’s counsel obviously 

viewed looking across our national borders as an “inherently suspect activity.” 

I was perplexed. Why did the farmer’s counsel’s citation of Canadian law signal desperation and trigger derision? Why, I wondered, should case law from Canada–an English-based, commonlaw jurisdiction geographically closer to Wisconsin than Florida–not be considered persuasive?

Professor Johns and I ask the same question, but now of several members of our country’s Supreme Court, including its Chief Justice.  As far as I can tell, there’s no good reason other than a pandering to the jingoism running strong through our current politics.  One correspondent has taken strong exception to me in essence calling Chief Justice Roberts a xenophobe, and I don’t think he personally is.  Nevertheless, his political support depends on pandering to xenophobia.  I can think of no other reason to close off consideration of arguments and reasoning that may be helpful to resolution of difficult legal questions.

Foreign law and legal argument

I wrote a post over two years ago on the point, but the legitimacy of U.S. courts referring to foreign law is an issue again today because the New York Times published a front page article discussing the waning influence of the U.S. Supreme Court’s decisions on the court decisions of other nations.  One reason, according to the article, is the steady outcry from some quarters against any reference to foreign law in the U.S. courts. 

I find this outcry absurd and positively contrary to the tradition of Anglo-American law.  The common law system, unique to the Anglo-American world, is one that builds law case by case, recognizing that to achieve justice the unique facts of each case require consideration of the arguments of the parties directly affected by those facts.

The key to my point is that the courts hear arguments.  They consider prior precedents, the views of experts, and even the rantings of political idealogues.  There’s nothing wrong with doing so.  There should be no limit on what courts can refer to and rely on; rather, faced with deficient evidence or authority, the answer is correct evidence or authority.  Thus, as I explained two years ago, when a judge relies on the above-referenced political idealogue’s screed about the purported litigation explosion in reaching her decision, the answer isn’t to forbid her from doing so.  The answer is for lawyers and judges to point out that the facts don’t support her argument, that in fact 86% of trial judges surveyed consider frivolous litigation anything from “no problem” to a “small problem,” while only 2% consider it a “big problem.”

Thus, when Anthony Kennedy wrote the majority opinion in the Supreme Court case holding that executing juveniles is “cruel and unusual punishment” under the 8th Amendment to the U.S. Constitution, it was perfectly legitimate of him to point out in support of his conclusion that ”evolving standards of decency that mark the progress of a maturing society” could be measured in part by the fact that no other Western industrialized country executes juveniles.  One may  disagree that U.S. standards are identical to those in other countries.  Justice O’Connor did so in that decision, arguing that “too few states had recently enacted such laws to convince her that the country generally had ‘set its face’ against the juvenile death penalty.”

The disagreement between Kennedy and O’Connor is the kind of disagreement courts resolve every day, but to not merely disagree with Kennedy but seek to entirely cut off reference to any source for one’s legal arguments is contrary to any notion of law I understand.  I expect it from (influential) right-wing wackos who think judges should be impeached for even considering foreign law in reaching their decisions.  I don’tf from our most recently appointed and confirmed Supreme Court Justices, John Roberts and Samuel Alito:

At their confirmation hearings, Chief Justice John G. Roberts Jr. and JusticeSamuel A. Alito Jr. indicated that they were opposed to the citation of foreign law in constitutional cases. Chief Justice Roberts noted that foreign judges were not accountable to the American people and said that allowing the use of foreign precedent expanded judicial discretion.

“Foreign law, you can find anything you want,” Chief Justice Roberts said. “Looking at foreign law for support is like looking out over a crowd and picking out your friends.”

You can just as easily find “anything you want” in virtually any source courts regularly cite.  As I stated above, the answer to bad argument is good argument, not censorship.  There is nothing special about foreign court decisions except, it seems, an ever-growing U.S. fear of everything “foreign.”