"We don't use foreign or international law; we consider the ideas that are suggested by an international court of law." (1)
--Justice Sonia Sotomayor (April 2009)
Rule 1.2 ... [beta]--to consider but not use; a source for inspiration but without legal authority
In this essay I consider what it means to consider something. More directly, I consider how a judge might distinguish a source used for inspiration from a source used as legal authority. I wonder if Justice Sotomayor posits this line-drawing problem as a koan to would-be clerks. To my limited ken, the epistemological limits of the English language make it impossible to separate these concepts with precision. I argue that we should instead lobby Bluebook editors to create a new signal that can capture a heuristic of citing something for edifying or contextual value. This is not a purely pedantic or indulgent exercise. (2) Rather this solution reflects a core motivation of lawyers and judges who cite to non-authoritative authority-that it is bricolage, (3) ornamental, (4) an aesthetic. We expect legal documents to look a certain way. Perhaps literary icons like First Circuit Judge Bruce Selya can get away with the no-citation opinion. (5) For the rest of us, there must be a reference to something. Whether it is M*A*S*H*, (6) or rapper Biggie Smalls, (7) or your own planted dissent or concurrence (8) from a previous opinion, the reader expects your argument to have a provenance. Signals reify and concretize this visual need for citation, and at the same time congeal ineffable gradations of inference into discrete pictographic symbols with uniform meanings.
I thus present the signal [beta]-or sharp S-in honor of the allterative resonance of Justice Sonia Sotomayor's own name. She first articulated the nicety of this distinction at a 2009 conference in reference to the perennially debated topic of foreign authority in U.S. courts. (9) According to Justice Sotomayor, judges possess the robotic ability to compartmentalize what they read or experience from what they think or feel. They can look at something without letting it inform them. (10) This feels counter to current trends in constructivist theories of education. It also feels contrived.
Per the American Society of International Law taxonomy of foreign authority in U.S. courts, looking at foreign materials can be "an aid to interpretation." (11) I agree with Justice Kagan's quip that good ideas are defintionally good, whereever they might come from. (12) And, as surveyed by Professors Calabresi & Zimdahl, foreign materials have been cited since the birth of the United States. (13) Even Justice Rehnquist thought this practice was okay! (14) But there is of course a lurking problem with the facile citation to foreign case law for non-authoritative value: the unexplained reference gives rise to conflicting interpretations.
Professors Delahunty & Yoo confirm there is nothing wrong with citing foreign authority for the same reason one might cite a law review article. (15) However, law review articles are always and inherently persuasive materials. We don't need extra in-text qualifications from a legal writer to remind us she is citing to Professor Sunstein as instructive guidance. Additional clarification would be read as superflous or amateur. A citation to a law review with or without an accompanying Bluebook signal-reads as a "good idea that has been valorized by the submissions and editorial process of the academy."
However, the standalone citation to a foreign case is opaque. How are we to interpret the unexplained nod to, e.g., the European Court of Human Rights (16)--as having binding value on the court? As a manifestation of an interesting thought? As providing contrast or context for what we could choose to do here, but ultimately decide not to do? (17) Judges probably often consider and use foreign authority for multiple, perhaps contrary reasons. I exclude here one very specific kind of reference-when per conflict of laws analysis a foreign law must be applied. Use of foreign authority can be required when intepretating the Laws of Nations or a tort or contract dispute whose locus is abroad. Use of...