Foreign Law and Chief Justice Roberts

Dave (and others) noted with approval the following quote by Chief Justice Roberts:

"As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They’re there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent — because they’re finding precedent in foreign law — and use that to determine the meaning of the Constitution. And I think that’s a misuse of precedent, not a correct use of precedent."

Dave then asked me to expound on my luke-warm reaction to the quote. I was thinking about a post on foreign law a while back, but it was no longer timely when I had mentally worked through it, so I let it go. Now I guess I have an excuse to type up the old conclusions.

Let me start with a brief discussion of foreign law in Roper v. Simmons, 125 S.Ct. 1183. That's case from March '05 in which the Court held that states can't execute a defendant who was a minor at the time the crime was committed. Justice Kennedy set off a major controversy when he noted "the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty."

The oversimplified, but inaccurate, view of Roper is that the Supremes simply relied on foreign precedent to declare that the U.S. Constitution prohibits execution of offenders who were minors at the time. In reality, Justice Kennedy spent the bulk of the opinion citing indicators among the states that the death penalty for minors was highly disapproved, and on the wane, and therefore no longer consistent with American sentiments on the subject. Whether or not you think this approach is valid (I don't), that's what he did. Then, only after reaching this conclusion does he say that the ruling "finds confirmation" by looking at other nations, and expressly states that "[t]his reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility."

Roper may still be derided, and on a number of grounds, and one of those grounds is that future opinions will look to Roper (albeit incorrectly) for the proposition that foreign law can be influential, if not controlling. But it's simply not a case of the Supreme Court saying "France says X, so we should do X."

With that in mind, back to the original question of when and how foreign precedent is to be used. Let me first state the the problem highlighted by Justice Roberts -- that judges can simply pick and choose indiscriminately to get whatever precedent he or she wants -- is by no means insignificant. But if it leads Roberts or others to decide that it is never inappropriate to look at foreign precedent, then it goes to far.

Consider this analogy. In our nation, each state's laws (including judicial opinions) are independent and sovereign. A judge in Alaska can't set precedent for a judge in Florida, and vice-versa. Yet both judges will consider the legal reasoning in each other's opinions, and if that reasoning is sound, and if the relevant circumstances are sufficiently similar, the persuasive legal reasoning of one state may be adopted in another. I emphasize "may" because neither judge is bound by the other to adopt any particular rule of law.

This system serves us well. In Nevada, we have a lot of case law spanning over a hundred years on mining rights and such, because historically that's what our courts have had to deal with. By contrast, we don't have a lot of securities law, for example. So if a securities case comes before the Nevada Supreme Court, the court and the lawyers will look at the experience of other jurisdictions to -- and here it the key point -- see what has worked and what has not. If New York has dealt with similar problems, and dealt with them successfully, then there is no reason for Nevada to re-invent the wheel. But if the New York rule has proven unsuccessful, or if there is reason to believe it worked there but wouldn't work here, our Supremes will reject that rule in favor of something more applicable.

That is our legal history, and it has served us well for hundreds of years. Strictly speaking, every law in America is based on "foreign precedent" because colonial courts simply did what England did, unless what England did made no sense in the colonies.

If the Supreme Court wants to rely on foreign precedent, then, it may do so quite profitably, in my view, so long as it follows a few crucial rules in doing so.

1. The proponent of the foreign precedent must show that the other nation faced a similar problem, and that it has been successful. In other words, "France does it" is not good enough, because you first have to show that a) France does it for a similar reason, and b) it worked for France. After all, France has tried a quasi-socialist regime for the past few decades, and their economy is in the crapper. "France does it," in that context, is a great argument to do something else.

2. The proponent of the foreign precedent must show that the relevant conditions are sufficiently similar that we can expect a similar result. For example, in the 1993 case of Catholic Commission for Justice & Peace in Zimbabwe v. Attorney-General, the Supreme Court of Zimbabwe commuted the death sentences of four prisoners because their prolonged imprisonment under inhumane conditions amounted to a constitutional provision prohibiting "cruel, inhuman or degrading treatment." In my opinion, before anyone can use Catholic Commission as persuasive authority in a U.S. court, that party first has the burden of showing that U.S. prisons are sufficiently similar to Zimbabwe prisons (yeah, good luck with that) to justify following that precedent.

My foundational principle is that wisdom and experience are not to be discarded, simply because they come from a foreign court. But experience is only relevant to the extent that it applies to a new situation, and a wise course of action under one set of circumstances may be foolishness under other circumstances. So we gain the maximum benefit by incorporating that wisdom and that experienc which, rationally, is most likely to be of assistance in American jurisprudence, and we deny the influx of foreign precedent for the sake of foreign precedent by requiring a showing of the factors I've discussed.

I hope it's clear that this is a more complicated issue than Justice Roberts' quote would indicate. But I don't reject the sentiment completely, especially given that I can easily come up with numerous examples of foreign precedents that we should never in a million years follow. The use of foreign law needs to be disciplined.