When and how U.S. courts should cite foreign law.

• Author: Yeazell, Stephen

At a recent Ohio State University symposium honoring her fifteen years on the U.S. Supreme Court Justice, Ruth Bader Ginsburg responded to questions submitted by law students. (1) One question asked her about the controversy surrounding courts' citation of foreign law. Justice Ginsburg took a calm view of the matter: "I frankly don't understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law." To demonstrate her point she offered an example:

And one of the examples that I give of that was a case before the Israeli Supreme Court some years ago; it was called The Ticking Bomb Case. The police think that a suspect they have apprehended knows where and when a bomb is going to go off. Can the police use torture to extract that information? And in an eloquent decision Aharon Barak then the Chief Justice of Israel said, "Torture? Never!" and explains that "We could hand our enemy no greater weapon than to come to look like that enemy in our disregard for human dignity." Now why should I not read that opinion and be affected by its tremendous persuasive value? So that's just one example. (2) She followed her example with a comparison:

Our neighbor to the north, Canada... is a very interesting supreme court, probably cited more widely abroad than the U.S. Supreme Court, I think for one reason: You will not be listened to if you don't listen to others. I've been asked so many times by jurists abroad: "We in our country are inspired by model of the U.S. Supreme Court, and we refer to your decisions, but you never refer to ours. Don't we have anything to contribute?" (3) Others disagree about the usefulness of foreign law. According to the same New York Times article that reported Justice Ginsburg's comments, Chief Justice Roberts responded to a similar question during his nomination hearings by saying, "If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge." (4) Some members of Congress have been less measured; according to the Congressional Record, Senator Cornyn (R-TX) has expressed concern

[O]ver a trend that some legal scholars and observers say may be developing in our courts--a trend regarding the potential influence of foreign governments and foreign courts in the application and enforcement of U.S. law. If this trend is real, then I fear that, bit by bit, case by case, the American people may be slowly losing control over the meaning of our laws and of our Constitution. If this trend continues, foreign governments may even begin to dictate what our laws and our Constitution mean, and what our policies in America should be. (5) And in the popular sphere, the rhetoric is even more heated; apparently responding to Justice Ginsburg's Israeli example, a television commentator noted:

Well, here's an idea for Justice Ginsburg. Perhaps she would like to meet and talk with Saudi Judge Sheikh Kabib al Habib, who has again denied to annul [sic] a marriage between a 48-year-old man and an eight-year-old girl. Justice, I think you should really talk to Judge al-Habib. By the way, the child's father arranged that marriage in order to settle debts, an interesting custom. Perhaps Justice Ginsburg would with like us to bring that custom to the United States. (6) Justice Ginsburg is right on one big point: there is a lot more heat than light in this small controversy: U.S. courts not only do but often must cite foreign law in circumstances that produce no comment--much less a brouhaha. Unfortunately, both the example Justice Ginsburg gave and the motivation she suggested in these two passages are unrepresentative and misleading. In the overwhelming majority of cases where U.S. courts cite foreign legal sources, they do so because such sources are the only relevant authorities. Moreover, when U.S. courts do cite foreign law, they are not doing so because they hope for reciprocal respect from foreign tribunals: they're doing so because they have to. Finally, almost none of these foreign citations involve such controversial decisions as the use of torture. Conversations with educated non-lawyers (and even an occasional legal academic) suggest that misconceptions about this ancient practice are reasonably widespread. So I've imagined what Justice Ginsburg might have said--if she'd not been responding off the cuff to a single question in a series, and if she'd had a half hour instead of a minute and a half.

There is a debate about U.S. courts citing foreign legal sources. A very small part of this debate is entirely legitimate-and I'll return to that. But first, let's be clear that there are many circumstances--accounting for the overwhelming majority of citations to foreign law--when a judge, sworn to uphold the Constitution, would be in dereliction of duty if he or she did not cite foreign legal sources.

Start with the easiest cases. In recent decades the Supreme Court, often in opinions written by Justices associated with a conservative wing of the Court, has vindicated parties' contractual power to manipulate the procedural rules under which their cases are decided. (7) One such manipulation--found in large numbers of international contracts--is a choice of law clause, in which the parties stipulate that the law of Britain, or Mexico, or Italy will apply to any disputes arising under the agreement. U.S. courts regularly hear and decide such cases-applying the law of the nation designated in the clause) As you read these words, there are half a dozen U.S. courts that are assiduously citing foreign law, at the command of the U.S. Supreme Court or of similar mandates from their state supreme courts. They are doing so because the litigants have a choice of law clause and governing U.S. law says to respect that choice, and to respect it, the courts have to cite and discuss foreign law. That's not always easy or well done, a point to which I'll return, but it is a duty of a court under existing U.S. law.

A closely related second category comprises those cases where there's no choice of law clause but an ancient if sometimes indeterminate body of law (called "conflict of laws") (9) dictates that the correct law to apply is foreign. So if on a trip to Austria to attend some opera (answering a different question at the symposium, Justice Ginsburg briefly discussed her favorite operas), she were injured in an auto accident involving her fellow Justice and opera buff, Antonin Scalia, and if, back in Washington D.C., she brought suit against Justice Scalia to recover for her injuries, it's likely that a court would conclude that Austrian tort law applied to the case. (10) And again, the U.S. court would be duty bound to cite and discuss Austrian statutes, treatises, and the like. Such a practice would be entirely uncontroversial; there is even a Federal Rule of Civil Procedure laying out the path by which litigants raise such issues of foreign law. (11)

A third kind of case--still in the uncontroversial category-arises when either a treaty or a statute explicitly refers to foreign law. One such statute--the Alien Tort Act--famously but mysteriously gives federal courts jurisdiction "of any civil action by an alien, for a tort only, committed in violation of the law of nations." (12) Interpreting this statute has been difficult for the courts, but almost everyone (13) who has looked at it has thought that to apply the statute a U.S. judge has to decide what acts do in fact violate "the law of nations." (14) That phrase has been taken to refer not to the law of a single nation, but to the consensus reached by every (or almost every) nation even in the absence of a treaty. (15) Two of the agreed-on examples include taking a diplomat hostage and acts of piracy on the high seas: both violate "the law of nations." But, almost everyone agrees, the only way to give content to that phrase is to survey the law of nations to establish whether there is a consensus and, if so, whether it includes the act on which the plaintiff is basing her suit. Not too long ago the U.S. Supreme Court found that it did not violate the law of nations for U.S. Drug Enforcement agents to kidnap from Mexico, and return to the U.S. for trial, a physician accused of conspiring with drug lords to torture a U.S. officer. (16) A similar reference appears in the Foreign Sovereign Immunity Act (17), part of which abrogates sovereign immunity for a nation that has taken the property of a U.S. citizen "in violation of international law." (18) Again, to prevail against the expropriating defendant, the...