Citing foreign law is symptom of problem, not problem itself.

Date21 May 2007
AuthorZiemer, David

Byline: David Ziemer

Judges and justices don't actually rely on foreign law when they cite it to support an opinion; they merely add it as "window-dressing" or "filler" to justify a decision reached on other grounds. But if they did rely on it, it would be a problem, because such sources have no relevance to interpreting the U.S. Constitution. That is the idea Judge Frank H. Easterbrook shared while speaking to the Appellate Practice Section at the Wisconsin State Bar convention in Milwaukee on May 10. Easterbrook compared the recent citations to foreign law by the U.S. Supreme Court in cases involving the death penalty and sodomy to the Court's citation to social science in Brown v. Board of Education. At the time, he noted, there was much discussion over the propriety of using social science to interpret the Constitution. When private court papers were released years later, however, it turned out that the social science had nothing to do with the decision, but was just filler added by a clerk. Discussing Lawrence v. Texas, in...

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