Foreign Law and the Constitution (part two)

Dave has a reply to my first post on foreign law and the Constitution. I'm responding here, rather than in his comments section, because this is probably too extensive for a comments section.

He starts by noting that Scalia read Kennedy's majority opinion as relying a lot more heavily on foreign law than I allowed, and asks, "perhaps Sobek believes Scalia misread Kennedy's opinion?"

Well, yes, mostly. Scalia states: "Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage." That's manifestly not the case. And the fact that Scalia writes a copious amount of time to debunking the first part of Kennedy's opinion suggests precisely that -- if international views "take center stage," then why the heavy emphasis on domestic laws, attitudes and precedents in both the majority and the dissent? Note that Kennedy devotes 30 paragraphs to domestic analysis, and 6 to international opinion. But I've already noted that Kennedy's express language forbids Scalia's characterization.

Then again, Scalia may very legitimately fear that Kennedy's obiter dicta will be used in future opinions to go waaaay beyond Kennedy's own limited scope. And that's the way Supreme Court opinions tend to go; one of my Con law professors explained that the actual words of a case are nowhere near as important as what later Courts say the words meant. And Scalia and other critics of Kennedy are not at all unreasonable to fear that a dangerous door has been opened.

"Of course, the question remains why Kennedy felt that a reference to foreign opinion had to be made at all. Either his argument was strong enough on the domestic merits alone and Kennedy added the foreign opinion reference out of a sloppy rhetorical flourish, or he felt it was necessary to include foreign opinion in order to strengthen an argument he may not have felt confident enough to win on domestic merits alone. Either way, unless you accept that foreign opinion (not even law, but opinion) has a place in SCOTUS deliberations, then whatever reason Kennedy used to include the reference is superfluous. It's the legal equivalent of tits on a bull."

Yes, well, the Supreme Court has been putting tits on the bull for a long, long time. The first case I ever read in law school, in fact, Pennoyer v. Neff, is almost entirely superfluous. By their very nature, dissenting and concurring opinions are superfluous. But dissents, concurrences, and dicta have a curious habit of becoming "The Law." Hence the reaction of conservatives.

"Sobek then argues that the use of foreign precedent is similar to the American state courts using precedent from each other. I don't see how this is directly relative, however, as the key adjective here is *American* states, relying on American laws that are assumed to have already passed American constitutional scrutiny."

First, let's not read my last post so narrowly as to assume we're only talking Constitutional Law. I'm referring in general to foreign law as persuasive authority in any case, but constitutional cases in particular, because that's the hot topic.

With that in mind, the basis of my argument is that a court (state or federal) should feel free to adopt reasoning and legal tools, from whatever source, so long as it works. And to make sure the reasoning is sound, and that it is likely to work, I proposed my two crucial rules.

We've seen the successful adoption of foreign law concepts in two well-known areas of American jurisprudence: worker's compensation and the contract doctrine of unconscionability (both from German law). Both are good ideas. One reduces the legal burden of an injured worker by creating a common fund to satisfy claims, while immunizing employers for negligence -- basically a legal shortcut to spread risk and thus maximize resources. The other is a consumer protection measure that lets a judge decide that the terms of a contract are so incredibly lop-sided that justice cannot be done by enforcing the contract. The American experience has shown that both legal tools, while imperfect, function sufficiently well to merit their adoption.

In other cases, adoption of a foreign rule has proven unworkable. In American contract law, a contract requires consideration -- that is, the contracting party must exchange something of value for the agreement to be enforceable. So a gratuitous promise -- e.g. "I promise to give Dave a million bucks" -- is unenforceable, because it's just a promise, without any bargained-for exchange. The states used to have a rule that by affixing a seal to a written document, a gratuitous promise could become enforceable. But gradually the seal rule fell out of favor. New York considered adopting the European notary system, whereby a gratuitous promise could be made enforceable by notarization. But that notion was abandoned when, upon close inspection, it was determined that a European notary and an American notary have very little in common. The importation of a notary rule, then was incompatible with American jurisprudence, and was rejected.

Notice how these examples illustrate my two rules for using foreign law. The first is that the other nation confronted a similar problem. In Germany, as in America, with the industrial revolution, workers increasingly found themselves subject to anonymous injury with proof of negligence almost impossible. If a boiler explodes and injures you, and in the process is itself incinerated, how do you prove what caused the explosion? But if you can't prove that, how do you prove your case? So the Germans came up with the worker's comp solution, and as a practical matter it worked. The second rule is that the systems must be sufficiently compatible that a similar result may be expected. While German and American law are very different, upon close inspection it appeared that the German rule could be adopted and used to solve American legal problems.

And again, experience has shown that the adoption of German law has worked, in that area.

Note that it would have been completely irresponsible to adopt the German rule if a) it didn't work in Germany, or b) prevailing conditions would have made the rule incompatible in America. Consider, for example, if a completely non-industrialized nation had tried to adopt the worker's comp rule: the justification for risk-shifting would be moot.

And note that the notary rule, while it works fine in Germany or France, would have failed my test. Perhaps the rule would have been sufficient to deal with a problem faced in both places -- finding a just device to determine which gratuitous promises are legally enforceable. But the second rule, similarity of conditions, could not be satisfied. In America, you take a class, pay your $50, and you're a notary. In Europe, you get a degree, buy into someone's licensed practice, and learn an obscene amount of law. A European notary is not like an American notary.

With all of that in mind, I reiterate my views on even Constitutional jurisprudence. And I emphasize that I'm not relying on "international consensus" or any such nonsense. It's insufficient, in my view, to argue that "almost every country prohibits X, and therefore the Constitution also prohibts X." That simply does not follow. It must first be established that other countries do X to solve a problem that also confronts America, that it has worked in that other country, and that conditions are sufficiently similar in America to expect a similar result.

Rather than discussing hot-button issues, like death penalty, equal protection, or abortion, let's focus on something relatively bloodless: personal jurisdiction. In order for me to sue you in any given court, that court has to be able to exercise personal jurisdiction over you, according to the XIVth Amendment Due Process clause. So if I sue Dave in a Nevada court, but Dave doesn't live in Nevada, owns no property in Nevada, doesn't conduct business in Nevada, and has only been in Nevada once, four years ago, on a crazed coke-and-Thai-hooker binge, the Nevada court will tell me to take a hike. It's incompatible with "traditional notions of fair play and substantial justice," to use the official lingo. He doesn't have enough contacts with Nevada.

We live in a federal system. A really big one. How do we determine what process is due under the Constitution, in such a way that parties from different states can sue or be sued in a way that is fair to Plaintiffs and Defendants? Consider that, as we explore answers to these questions, Europe faces a similar problem. When is it fair for a German to sue a Spaniard in a German court? And if the Spaniard doesn't show, how and where may the German enforce his default judgment? Note that the U.S. Constitution doesn't answer any of these questions, so strict constructionism is insufficient. In this case, as in many others, it seems that the intent of the Framers was to let judges figure out a workable system. So why not benefit from the experience that Europeans -- who are in a similar situation -- have gained through their own attempts to work things out? But that is only, and I must reiterate only, after my two threshold questions have been asked and satisfactorily answered. Once again, it's not good enough to say, "Well Switzerland allows jurisdiction to attach if any of Defendant's physical property is in the country," because that's only part of the analysis, and by far the least important part.