"Outsourcing authority?" Citation to foreign court precedent in domestic jurisprudence & refinement or reinvention: the state of reform in New York.

• Author: Leary, James W.
• Position: FOREWORD

The 2005-2006 academic year was a novel one, as the Albany Law Review sought to challenge its own precedent by hosting two symposia--the first in the Fall of 2005, which considered the propriety, methodology and potential impact of citation by United States courts to foreign court opinions and transnational law, and the second in the Winter of 2006, which focused on reform issues facing the State of New York. (1) In the process of producing these two symposia, Providence smiled upon the Albany Law Review in two noteworthy ways. First, the names on the masthead of this volume compose an assembly of talented, dedicated and driven minds which, I am sure, would arouse the envy of any scholarly publication in any era. Additionally, the greater academic community at Albany Law School provided fertile and supportive ground for the dual symposia--as faculty, staff and students generously shared their insights, efforts and time in assisting the Law Review in conceptualizing, organizing and hosting the two events. Second, the Albany Law Review was fortunate as its two chosen topics--citation to foreign courts and reform in the State of New York--became front page issues of public debate, creating an exciting and energized atmosphere in which to hold the live symposia events and producing an intellectually rich time for the release of this publication.

Great controversy has erupted recently over citation of foreign and transnational legal authority. Politicians and pundits have dramatically admonished the United States Supreme Court for outsourcing to foreign entities the duty of interpreting the United States Constitution. For instance, the Court came directly under fire over this issue in 2005 during appropriations hearings before Congress. Further, in confirmation hearings, now Chief Justice John Roberts firmly challenged the propriety of the practice. He described it as lacking accountability and allowing a judge to "cloak his own views" under the garb of legitimate precedent. Justice Samuel Alito also articulated his view of the practice during his confirmation hearings, stating, "I don't think it's appropriate or useful to look to foreign law in interpreting the provisions of our Constitution ... the Framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world." Justice Alito elaborated:

The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The Framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of...