Foreign law in domestic courts: Different uses, different implications

One can be forgiven for wondering if the debate about references to foreign law in U.S. court opinions is much ado about nothing.1 In none of the cases that sparked the debate - Atkins v. Virginia,2 Lawrence v. Texas,3 and Roper v. Simmons4 - did the U.S. Supreme Court treat foreign law as binding law that could override U.S. law. Nor, as two recent articles empirically demonstrate, is the use of foreign law by U.S. courts anything new.5 For courts in other countries, the use of foreign law is "decidedly commonplace."6 Ye t "[t]here is little evidence to suggest parallel mobilization in opposition to foreign citations by courts abroad"7 - which suggests that the controversy in the United States indeed might be disproportionate to the problems posed by comparativism in judicial decision making. As Noga Morag-Levine states, "Supreme Court opinions are replete with references to extra-legal sources such as philosophical treatises and social science research. Why single out foreign case law as deserving of special condemnation?"8 After a careful analysis of the debate, Mark Tushnet concludes that what really is motivating critics of foreign law in U.S. courts is concern about the appropriate scope of judicial power, not foreign law per se.9 Nevertheless, the question of foreign law in domestic courts is an important one. Skeptics correctly warn that the use of foreign law - at least in the context of constitutional interpretation - raises serious issues of constitutional theory10 and comparative methodology. 11 Those more sympathetic to the use of foreign law not only disagree with skeptics' arguments that there is no "constitutional license" to use foreign law,12 but also claim that a greater willingness of domestic courts to use foreign law can improve the quality of constitutional decision making. The focus of existing research and commentary on both sides of this debate is on the constitutional issues associated with references to foreign law in U.S. court opinions and, more generally, on the important normative ...