Balkinization: Exporting U.S.Supreme Court Decisions

Exporting U.S.Supreme Court Decisions

Michael Stokes Paulsen

It is nice to read -- finally! -- some good news in the New York Times: "U.S. Court, Long a Beacon, Guides Fewer Nations," rings the headline of Adam Liptak's mildly interesting New York Times article today. (Sandy Levinson discusses the article, too, nearby.) The article's slant is that the U.S. Supreme Court, sadly, is losing its international prestige; its currency with courts of other nations is diminishing.

The article goes on to spend more of its time focsuing on the controversy over U.S. Supreme Court citation of foreign law in its constitutional decisions. The latter practice aggravates many constitutional conservatives. But it would seem an almost unrelated concern. What unites the two phenomena, loosely, is the idea of some sort of U.S. balance-of-trade in the export-import market for constitutional interpretation.

On the export side: I am relieved, heartened, even delighted that U.S. Supreme Court decisions less often are being cited, adopted, borrowed, or stolen by the courts of foreign nations! Since so much of what passes for "constitutional interpretation" by the U.S. Supreme Court is simply ad hoc judicial policymaking with (at best) tenuous connection to our America constitutional text, and since I so often disagree with the results of such policymaking(both as a matter of proper interpretation and because I think the outcomes tend to end up being rather bad policymaking), it is probably a good thing that foreign constitutional courts do not seek (as often as before) to plagiarize American Supreme Court errors. Our Court serves as a bad example, methodologically, concerning how to go about the enterprise of constitutional interpretation of an authoritative written legal text. And some of the policymaking we have exported over the years -- a constitutional right to abortion, for example -- is in my view equally unfortunate.

I certainly am not concerned that this might (or might not) be evidence that foreign nations do not like America so much as they might (or might not) have liked us in the past. Concern about this would seem to betray an unhealthy insecurity on our part. ("Oh my! What do other countries think of our Supreme Court these days?! What can we do to get more citations?!") As with law professors who check, daily, their "citation counts," I think we should just relax, get over ourselves, and simply try to interpret our Constitution correctly.

More importantly, I am optimistic enough to hope that diminished exports of Supreme Court interpretations of our Constitution reflect the increased understanding by foreign courts that (1) their written constitutions are not the same as ours;(2) even where language might be similar, our Supreme Court's interpretations are often not very sound; and (3) even where such foreign courts might possess a proper authority to engage in policymaking, U.S. judicial policymaking is not very good policymaking.

On the import side: I am not one of those conservatives who gets wildly upset about the mere citation of foreign law. Judges may find sources of enlightenment wherever they wish. (This is much my approach to citation of U.S. precedent by the U.S. Supreme Court, too.)

Thus, comparisons with the interpretive approach, and results, of other nations can be interesting at least, and perhaps marginally useful. I often include foreign constitutional decisions in my (USA) constitutional law teaching materials. They are interesting! And what exactly is the harm? Foreign court case law obviously is not controlling. But even the worst of Anthony Kennedy's odes to foreign law do not treat foreign law as controlling U.S. interpretation. (The concern of conservatives is simply that, in Kennedy's case, they are able to exert too strong an influence over a weak, tractable mind that is concerned with how folks think about him. But one could as well -- and probably rightly -- have the same concern about the undue influence of the New York Times on Justice Kennedy.)

Finally, on the overall balance of payments: Who cares? I suppose if we are concerned with what foreign judiciaries think of us, we will want to be in-demand suppliers; but we will also try to nourish our foreign markets by opening up our domestic market to their products. In general, we will want more trade. And, I suppose, we will want to gratify ourselves that we should end up being net exporters.

But if we are relatively unconcerned with foreign opinion, and seek to buy only what we cannot produce relatively more efficiently here, the law of comparative advantage (if I remember my basic econ correctly) would seem to favor importation of foreign law only for the purposes of deciding disputes in U.S. courts that turn on the meaning of foreign law. We should buy at home that which we can produce relatively more efficiently at home.

That foreign judicial systems may be realizing this law of comparative advantage, too, probably should be cause for approval, and not at all a cause for concern.

Posted 11:41 AM by Michael Stokes Paulsen [link]

Comments:

Michael,

Do I detect the hints of a conservative isolationism in your post? Might the idea of "opening markets" to our ideas in other countries also represent a step in the wrong direction for you?

Or does your dismay at another country "citing, adopting, borrowing, plagiarizing, or stealing" our court decisions for their own use only extend to such unilateral actions; are acts of "giving," "granting," "encouraging," "forcing," or "flooding the market" equally distasteful? That is, should we consider this form of mimesis as a one-way street where all agency is placed in the hands of the foreign "importer"?

Given that the "law of comparative advantage" in your analogy is predicated upon a lack of interest in the opinions of others, should we really be applauding when other people think the same of us? Haven't you just verified (and applauded) the article's metonymic message that the US is losing international prestige?

Relaxing and getting over ourselves may be one approach--after all, what are they going to do, attack us? Fat chance! Still, it seems odd to hear such advice coming from someone who so often espouses the values associated with proponents of American exceptionalism.

# posted by

PMS_CC : 1:23 PM

The Declaration of Independence spoke about a decent respect for the opinion of mankind, which other members of that generation, including judges, thought included the legal side of things.

As the article notes, even certain conservative legal scholars recognize this fact, the hysteria over citing foreign decisions notwithstanding. One might even consider such experiences useful.

It also seems we should be honored that other nations were guided by our bills of rights and judicial review. Such respect and guidance probably surely would also do us some good when dealing with other legal systems, including when our citizens and companies are affected.

Or, as one person quoted noted, maybe we are just so special, that such things are not that important.

# posted by

Joe : 1:44 PM

Why would other countries with different constitutions be citing to our Court decisions any more than we should cite to theirs?

Our constitutional interpretation is not supposed to be a common law effort and is thus not an intellectual trade good between foreign courts.

# posted by

Bart DePalma : 1:47 PM

I long ago gave up any hope that Prof. Paulsen was capable of serious discussion. This post simply reinforces that conclusion; it's the behavior of teenager who pretends to be happy that nobody likes him but cries himself to sleep at nights.

Let's see here:

1. "Since so much of what passes for "constitutional interpretation" by the U.S. Supreme Court is simply ad hoc judicial policymaking with (at best) tenuous connection to our America constitutional text, and since I so often disagree with the results of such policymaking(both as a matter of proper interpretation and because I think the outcomes tend to end up being rather bad policymaking), it is probably a good thing that foreign constitutional courts do not seek (as often as before) to plagiarize American Supreme Court errors."

This simply assumes his conclusion: that foreign courts share Prof. Paulsen's view of the Court. More likely, I suspect, is that it's the conservative reasoning of the Court over the last 20 years which foreign courts are rejecting. IOW, they reject what Prof. Paulsen applauds, and applaud what he rejects.

2. Then we get the bravado: "I certainly am not concerned that this might (or might not) be evidence that foreign nations do not like America so much as they might (or might not) have liked us in the past. Concern about this would seem to betray an unhealthy insecurity on our part."

And if people on elevators begin moving into the corners and holding their noses when you enter, you shouldn't take this as evidence that perhaps your bathing habits could use some improvement.

3. Then there's the misunderstanding of the principle of comparative advantage. What it actually says is "that although one country may have an absolute disadvantage with another, value can be created for both countries by allocating resources to the most competitive area of the disadvantaged country."

IOW, if other countries can produce legal opinions more efficiently than they can produce other services, we should import those opinions. Conversely, if we can produce legal opinions more efficiently than we can produce other services, then we should export those opinions. Either way, Prof. Paulsen is wrong when he rejects "trade".

Oh, and making an analogy to "trade" seems silly when the whole purpose of his post is to reject the entire idea of "trade". He's a protectionist, so citing the principle of comparative advantage is pointless.

# posted by

Mark Field : 1:48 PM

One poster writes, “Why would other countries with different constitutions be citing to our Court decisions any more than we should cite to theirs?”

You really have to wonder where ideas, such as the idea that there’s some kind of international legal tit for tat, like this, come from. You’re kidding yourself if this is what you really, truly, think because what you are seeing, in black letter law terms is American legal moral authority, beyond fading and wilting, has collapsed. And your politicians and political spin jockeys and maybe even some of your judges, are to blame.

The United States Supreme Court has been a leading international legal light. Do readers really think that Marbury v. Madison has not informed judicial review and the fundamentals of in other federal, common law jurisdictions? or that other more modern decisions, have not influenced constitutional and fundamental freedom jurisprudence elsewhere.

The decline of intellectual authority in America’s highest court can variously be attributed to the following:

1. A perceived decline in the collective intellectual rigour of the Court’s judgements – stare decisis has shrivelled as a principle of judicial opinion in the United States from the point where Supreme Court treatment of it to the point where has less moral authority than Walmart’s exchange policy – in matters of constitutional jurisdiction, for heaven’s sake. Dissents often read like crowd calls in wrestling arenas.

2. The most likely territory where non-American courts might look to others for illumination is in the field of fundamental freedoms. But the problem is that nothing remarkable has really happened in that area of US Supreme Court jurisprudence for a long time. Other common law jurisdictions, coming far later than the USA to constitutionalized rights models, have caught up to and passed the country that invented bills of rights.

3. Federal jurisdictions, elsewhere in the world, likewise have absorbed caught up and surpassed the interpretations techniques variously laid out and parsed in the US Supreme Court and they have evolved their own bodies of law, quite happily, on their own, thank you very much.

But the underlying, chronic, incipient, structure-sapping force stealing the country’s legal prestige is the constant, harping, crass, politicization of the court through its appointment process, from Bork to Miers and everywhere in between, which has contaminated perceptions of the Court to the charge that each and every one of its very own members are constantly being characterised by politicians and their operatives as acting only to serve an ideological and electoral bias.

Smarten up America – it doesn’t matter if it is Bush v. Gore or District of Columbia and Heller. You are presenting your court to the rest of the world as though it was nothing more than a juridicial roller derby. You have seen the enemy and it is you.

# posted by

Tantallonblog : 5:39 PM

I perused young Professor Paulson's review How to Interpret the Constitution (and How Not To) 115 Yale L.J. 2037 (2006), an encomium on Professor Akhil Amar's opus, America’s Constitution: A Biography which he contrasted with Professor Rubenfeld’s "Revolution by Judiciary: The Structure of American Constitutional Law.

I suppose it behoves a young academic on the make to use plenty of butter to obtain the support of someone like Professor Amar who is undoubtedly well placed to see to the young man's advancement among advocates of the originalist heresy, and Paulson certainly laid it on with a trowel.

How gratifying therefore to see that Professor Rubenfeld's Reply opened with this exquisite observation:-

"I do not know Michael Stokes Paulsen or his writings, but I will do my best to reply to his gracious and elegantly impartial review. His absolute refusal to engage in sycophancy should be a model to us all. I cannot imagine why he likens himself to 'a skunk'."

Professor Rubensfeld went on from there to administer appropriate chastisement.

I then read Paulson's appalling and immoderate diatribe on this blog Roe at 35; Death Toll at 50 Million, and the penny dropped. Of course, Paulson's cathedra is within a university run by the Roman Catholic Church. As Peppone would have said of Don Camillo, Paulson doubtless has to toe the Vatican party line.

It may seem strange that so many proponents of the 'originalist heresy' should be RC's until one remembers that the Vatican holds that democracy is not necessary for salvation and the Church has in the past co-existed very happily with fascist dictatorships (eg Mussolini, Franco, Pétain and various Latin American régimes of the same ilk - there was even a concordat concluded with Nazi Germany).

With all the arrogance of his youth, Professor Paulson's waspish post above served to remind me that in England very, very few academics are ever appointed to judicial office and, indeed, there used to be a rule that no academic legal work should be cited to the Court unless its author had been dead for a least a century.

That rule is now somewhat attenuated, but the principle behind it: namely, that it is for the judiciary and not academics to say what the law is, still holds good.

I recollect a Justice of the Supreme Court once said something to the effect that the Constitution of the United States means what the Supreme Court says it means.

Just as well, perhaps, that it is not yet for Professor Paulson to decide such questions - although after the nomination of Governor Palin to the VP spot I suppose anything could happen.

# posted by

Mourad : 6:19 PM

tantallonblog writes (my italics):
"Other common law jurisdictions, coming far later than the USA to constitutionalized rights models, have caught up to and passed the country that invented bills of rights."
The ECHR has been the major producer of judicial rulings on fundamental rights over the last 50 years, and it's not a common law jurisdiction. of course, British concerns about justiciability strongly influenced the text of the European HR convention, and the Court's jurisprudence reflects both common and civil law traditions. Liechtenstein (a civil law jurisdiction) imaginatively decided, when it joined the Council of Europe and the HR Convention, to nominate for its seat on the Court an eminent Canadian - i.e. common law - jurist, Sir Ronald St.John Macdonald.

# posted by

James Wimberley : 5:20 AM

JamesW said:-

The ECHR has been the major producer of judicial rulings on fundamental rights over the last 50 years, and it's not a common law jurisdiction. of course, British concerns about justiciability strongly influenced the text of the European HR convention, and the Court's jurisprudence reflects both common and civil law traditions.

In fact, Foreign Office lawyers did most of the drafting of the ECHR. It was, of course, interesting that the executive was initially very fearful of incorporating the convention into domestic law - which led to a lot of washing of dirty linen in Strasbourg rather than London.

However, the effect of the HRA has been substantial and beneficial.

# posted by

Mourad : 6:43 AM

I have little to add to what previous commenters have written about why prof. Paulsen is wrong. I'd just like to clear up one thing:

Who invented the concept of a Bill of Rights again?

(And don't even get me started about the claim made in the NYT article that the US Supreme Court is the oldest and "most legitimate" constitutional court in the world. The Dutch Supreme court dates back to the 15th century, and while their power of judicial review under the present constitution might be more limited than that of its US counterpart, I'd be interested to know why it is not a "constitutional court".)

# posted by

martinned : 9:37 AM

O, I forgot one thing:

Citing foreign law is a strictly common law thing. Civil law courts don't even do it when they're interpreting a bilateral or multilateral treaty. The aforementioned Dutch supreme court essentially only cites its own precedents.

(The kind of explanation that Common Law courts give in their rulings would be found in the A-G's opinion of the case, which is a recommendation to the court that is submitted between the hearing of the case and the court's ruling. Unlike courts, such opinions do tend to cite literature, lower court rulings and foreign precedents, if relevant.)

# posted by

martinned : 9:47 AM

I think the article misses an important point.

The U.S. was one of the first western democracies, if not the first, to adopt a written constitution, judicial review and a bill of rights. So it stands to reason, that other nations adopting a constitution or a bill of rights after us, would look to us to see how we had proceeded -- at least at first. After they got their sea legs, they would look less and less to us and more and more to their own cultural and legal traditions. It hardly follows that this suggests that there is something wrong with the way we are looking at the law that triggered this. I think it would happen regardless.

Conversely, it doesn't follow that because other nations looked to us as the experienced constitutional adjudicator, we would look to them for their expertise. After all, we already believe we know what to do; we don't need to follow the example of nations that are newer to the game than we are to get up and running.

The analogy I would draw is when you start a new job. At first, it is natural to look at what the veterans on the job do to figure out what you should do. Over time, you will feel more and more confident that you know what you are doing and look less and less to veterans and rely more and more on your own judgment. Not because the veterans are screwing up, but because you don't need to follow their example anymore. But it hardly follows that the veterans would look to you (the rookie) to see what THEY should do. They already know what to do.

# posted by

Zachary : 2:20 AM

Many foreign constitutional principles and laws are similar to US constitutional principles and laws, so what is wrong with citing foreign court opinions where applicable? Also, court cases often differ and a foreign court decision may be more applicable to a particular case than any American court decision is. Also, there are some areas of the law where the US is obligated by treaty to follow international agreements, e.g., copyright law and the rights of aliens. Citing foreign court opinions in those areas of the law may be especially important in coordinating US court decisions with foreign court decisions.

Is citing foreign courts' opinions any worse than citing law journal articles that have not been peer(expert)-reviewed or even faculty-reviewed but have only been student-reviewed? Most law journals are only student-reviewed, yet they have been cited thousands of times by our courts! The Harvard Law Review alone was cited 4410 times in federal court opinions alone in the decade 1970-79 alone! These law journals are not just educational exercises for the students as so many people falsely believe! IMO student editing of the journals is OK, but the lack of peer(expert) review of the articles prior to publication is scandalous. Instead of fighting windmills by going after American courts' practice of citing foreign court opinions, we should be trying to solve a real problem -- the lack of peer review of law journal articles. Let's stop straining at a gnat and swallowing a camel.

# posted by

Larry Fafarman : 3:57 AM

BTW, though I spoke only of American courts' citations of foreign courts' opinions, the same reasoning would apply to the vice-versa situation.

# posted by

Larry Fafarman : 8:29 AM

Also, there are some areas of the law where the US is obligated by treaty to follow international agreements, e.g., copyright law and the rights of aliens. Citing foreign court opinions in those areas of the law may be especially important in coordinating US court decisions with foreign court decisions.

I don't think anyone objects to citing foreign court opinions in this context. The issue is citing foreign decisions in interpreting domestic statutory and constitutional law, not in interpreting international treaties. If we have signed a treaty, everyone agrees that foreign courts' interpretation of the same treaty provision we are looking at is relevant and can be cited.

Putting to one side the originalist objections, the issue w/respect to domestic law is that foreign law is different enough from U.S. law that citing the opinions really proves very little. Moreover, hardly anyone is familiar with the differences, and the time investment to learn them is probably not worth the benefit we get from citing to their case law.

One example that is frequently used is that we are the only major jurisdiction with an exclusionary rule. Without the exclusionary rule, our search & seizure rules would look very different because the costs of stricter warrant rules would be low if courts were not obliged to exclude the evidence from improper searches & seizures. But the average reader wouldn't catch that, maybe not even the average attorney. So citing to a foreign jurisdiction for search & seizure rules might result in a precedent that is seemingly on point, but in fact would be very misleading because the precedent would likely look very different if the foreign jurisdiction were operating under an exclusionary rule.

So once you legitimize foreign citations in interpreting domestic law, what you get is a fishing expedition for foreign cites that are not that relevant, coupled with lots of discussion (and rebuttal) of why that particular citation is or is not on point because of local rules and culture. There is so much to assess on the latter point -- which you don't have with the ordinary discussion of U.S. citations -- that this seems like a descent into the rabbit hole for very little upside. You are just decreasing the signal-to-noise ratio because you can't find a relevant U.S. cite.

# posted by

Zachary : 12:54 PM

Zachary said,
>>>>> So once you legitimize foreign citations in interpreting domestic law, what you get is a fishing expedition for foreign cites that are not that relevant, coupled with lots of discussion (and rebuttal) of why that particular citation is or is not on point because of local rules and culture. <<<<<<<

I am not saying that citing foreign court opinions is always appropriate -- I am just saying that it is sometimes appropriate. Citing Alice in Wonderland is sometimes appropriate (there is a lot of wisdom in Alice in Wonderland). Each citation or potential citation of a foreign court opinion should be viewed on a case-by-case basis. A general attack on the practice of citing foreign court opinions is tilting at windmills. Why should it be OK to cite unreliable sources like Wikipedia, law review articles that have not been peer(expert)-reviewed, and blogs where there is arbitrary censorship of visitors' comments, but not OK to cite foreign court opinions? And what about the Federal Rules of Appellate Procedure's new Rule 32.1, which requires all federal courts to allow citation of unpublished opinions? My blog article on Rule 32.1 says,

. . . many unpublished opinions have little or nothing about the facts of the case because the parties in the case are already well familiar with those facts.

So far as I can see, about the only thing that has been said in favor of the new rule is that modern technology has made it easy to search and retrieve unpublished opinions. That is like saying that we should all blow our brains out because guns have made suicide easier. In contrast, the new rule has the following disadvantages: the facts of the case that are given by the unpublished opinions are sketchy or even non-existent; the judges' reasonings are too sketchy; some court cases are not suitable to be precedents; often the opinions' authors themselves do not want the opinions to be cited; many unpublished opinions are written only to satisfy the litigants that there was some reasoning behind the decision; as a result of this rule, judges will often spend more time writing unpublished opinions, increasing court backlogs and taking judges' time away from writing published opinions; judges will stop issuing unpublished opinions in many cases in order to avoid being cited; many unpublished opinions are written by court clerks; there is too big an expansion of citable precedents; it increases the likelihood of conflicts between precedents; and this new rule increases the disadvantages faced by (1) pro se litigants who do not have access to the best online legal search engines such as Westlaw and (2) attorneys who are not familiar with a particular specialty.

# posted by

Larry Fafarman : 10:08 PM