Foreign law and opinion in state courts.

AuthorDeLaquil, Mark Wendell
PositionSymposium: "Outsourcing Authority?": Citation to Foreign Court Precedent in Domestic Jurisprudence

Not long after the Supreme Court's decision in Lawrence v. Texas, (1) I was discussing the use of foreign and international law in constitutional interpretation with a federal judge (who shall remain nameless). After a few minutes, this judge, one of the most conservative on the federal bench, said that in his court there are two kinds of authority: binding and persuasive, and that anything that isn't binding is persuasive. For instance, he could refer to a movie or other popular culture if it helped make his point. He then said that foreign and international law could be far more persuasive than law from the Ninth Circuit.

The fact of the matter is that the Supreme Court and federal and state courts throughout the country have been using foreign and international law in their decisions since the Eighteenth Century. (2) Every member of the current Supreme Court who has sat for a full term has either authored or joined opinions that have used foreign and international law, in some way, to interpret constitutional provisions that facially have no international implications. (3) Until recently, discussions of foreign law in very famous Supreme Court cases, from Dred Scott (4) to Miranda (5) to Roe v. Wade, (6) have gone largely unnoticed. Other discussions of foreign law in famous opinions, such as Justice Harlan's cryptic use of foreign law in his Poe v. Ullman dissent, (7) are still fairly obscure. Listing every case in which this practice has occurred would take far more time than we have here today.

In light of the enormousness of this subject, I will discuss something that is often not mentioned: the way that state courts have used foreign law and international opinions in their recent jurisprudence. (8)

While there's been much ink shed in the last two years over the relevance of the views of the world community in Supreme Court interpretation, the states have largely been ignored in this commentary. (9) As difficult as it is to construct a coherent narrative of legal trends with the Supreme Court, surveying state law is like watching Brownian motion.

That said, the general scholarly consensus seems to be that foreign law is not often used by contemporary state courts, except in certain discrete areas where the substance of foreign law is necessary to deciding domestic law questions. These areas include serving process, conducting discovery, ensuring recognition of foreign judgments, assessing rights under foreign law in probate and domestic relations matters, deciding choice of law issues, and in interpreting contracts with forum selection clauses. In other words, when the courts really can't get around it.

Outside these enclaves, however, state courts can and do use foreign law, representing international opinion on social and legal matters, in a variety of areas.

Many state courts have used foreign laws and views to interpret and make common law, the arena in which their authority is at its greatest. Just this year, in the disastrous Naxos Records case, (10) the New York Court of Appeals cited the international community's views on whether the sale of a sound recording constitutes a "publication" in determining whether certain musical recordings were protected under New York common copyright law. (11) Numerous state courts have used foreign law in making and revising their tort law. State courts in Wisconsin, 12 New Jersey, (13) Louisiana, (14) and Hawaii (15) have considered the predominant view in the world that municipalities should be liable for the torts of public actors in reconsidering common law precedents to the contrary.

Similarly, in the seminal case of Li v. Yellow Cab Co., the California Supreme Court cited the laws of France, Austria, and Portugal in supplanting the traditional contributory negligence system with a pure comparative negligence system, (16) and the Alaska Supreme Court cited the laws of "Austria, Canada, France, Germany, the Philippines, Portugal, and Spain" for the proposition that a comparative negligence system "has long been used in other nations of the civilized Western world." (17)

State courts also use foreign law when they interpret statutes that have foreign roots. Sometimes this occurs on a macro level, in states that were not English colonies. For instance, Louisiana's law is descended from the French civil law system, and its courts have often looked to French law, and commenters' restatements of such law, in their jurisprudence. (18) Similarly, in the Southwest United States, Mexican and Spanish law have lived on in certain doctrines, most notably those involving common property and riparian rights, and are considered by courts in those areas. (19) This also occurs on a micro level, when a particular type of statute descends from a foreign model. For instance, state courts in Montana and Louisiana, among others, have considered the foreign roots of state worker compensation laws probative in those law's interpretation (20) Holographic wills are another such example, being derived from the Napoleonic Code. And don't forget about the Romans--American courts have never tired of pedantically noting that a legal principle descends from Roman law, (21) and giving a Latin cognate if they can.

And then there are the interesting cases. In State v. Turner, the Washington Supreme Court decided that the state's prohibition against flag desecration, which had recently been amended by the legislature to remove a malice requirement, actually did require malice. (22) One of the principal ways the court did this was by tracing the evolution of wholly-unrelated flag desecration laws in Germany through imperial times, to Nazi laws, to then-current West German restrictions. (23) Similarly, in 1950, a New York Supreme Court cited the Universal Declaration of Human Rights to support its decision prohibiting a labor union that had exclusive negotiating rights with a tavern from forcing the establishment to fire its female barmaids, who were ineligible to join the Union. (24) This type of case is, however, far rarer than the aforementioned type of cases.

In general, state courts have been very reluctant--far more reluctant than federal courts--to use foreign and international law in interpreting the United States Constitution. They have not viewed the Supreme Court's use of international views as an invitation to expansively interpret the Constitution. They have, in a notable number of cases, used foreign laws and international views to interpret their own state constitutions, however.

One example that illustrates this disparity between state courts and federal courts is the prevalence of citation to the European Court of Human Rights (ECHR). The ECHR has been cited 6 times in state courts, including dissenting opinions, and on one occasion the court was merely explaining Lawrence. (25) Earlier this summer, the Ninth Circuit cited to many different ECHR decisions in a single case, addressing the Confrontation Clause, (26) and the court has been cited in about thirty other federal cases.

Much like in the Supreme Court, the context in which the relevance of international opinion is most often addressed is that of the Eighth Amendment, particularly challenging the death penalty or some variant thereof, like the recently-eliminated juvenile death penalty. In general, regardless of the type of foreign or international authority cited, state courts give these arguments a chilly reception, whether they are phrased in the context of foreign laws and an evolving standard of decency, or as customary international law binding on the states. (27) While this is not always the case, as the Missouri Supreme Court's decision in Roper clearly demonstrates, that case is the exception that proves the rule. (28) Aside from Roper, opinions that would clearly (29) use foreign views to interpret the Eighth Amendment have almost always come in dissent. (30)

To demonstrate this, I've assembled some quick statistics on how state...

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