Internmational Law and SuUpreme Court

[Paul Finkelman]

This discussion really simply shows how ignorant and/or cynical DeLay 
and his conservative allies are. The USSC has been citing foreign cases 
for centuries. In 2002 I did some quick and dirty research to discover 
that the USSC has cited cited to Blackstones Commentaries at least 350 
times, many using Blackstone as an authority for our law. The Court has 
also cited the great English jurist, Chief Justice Lord Mansfield more 
than 325 times. The Court has over 190 citations to the Magna Carta. The 
court has cited Montesquieu', Locke, Grotious, etc. The Court often 
relied on the works of Story, who cited and quoted from European legal 
commentators all the time. In other words, the Supreme Court and most 
other American courts, from the very beginning, relied on foreign law 
and foreign precedents. To offer just easy eample, we borrowed the 
fellow servant rule from England in the 1840s.

DeLay either does not know any of this because he is profoundly ignorant 
of history and constitutional law, or more likely, does not care because 
he is interested in making political points (perhaps to divert attention 
from his own deep corruption).

The irony of these arguments is seen in the debate over Ten Commandments 
monuments. Supporters of these monuments argue that the 10 C are a key 
source of law for the United States. In my recent article in Forham Law 
Review [The Ten Commandments on the Courthouse Lawn and Elsewhere, 73 
Fordham L. Rev. 1477-1520 (2005)] I point out the thse claims cannot be 
supported by law or our constitutional and legal history. Nevertheless, 
the people who object to a citation to modern law from another country 
are fully prepared to assert that law written many thousands of years 
ago in a place from distant from our own in culture and assumptions is 
somehow a legitimate source for the courts.

-- 
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at utulsa.edu



Darren Hutchinson wrote:

>While this explanation helps to make Delay's comments potentially
>reasonable rather than surreal, Delay is still grabbing at air.  Many
>foreign courts publish their opinions online -- just as the U.S.
>Supreme Court.  So it is entirely understandable that a justice-- who
>conducts her or his own research -- would look to these  internet
>sources. 
>
>I agree that the question of using foreign law in constitutional
>decisions merits debate; mixing the internet into that context does
>not advance the issue at all -- and it certainly does not support
>Delay's description of Kennedy as "incredibly outrageous."
>
>Finally, people might quibble with your reading of Delay's comments. 
>I would certainly like to see the full transcript.  The news reports
>portray the internet comment as unrelated to the foreign law
>statement.  I would also like to know more about what Kennedy said. 
>Could it be that the nonlawyer Delay is simply unaware that internet
>sites like Westlaw and Lexis (or even www.harvardlawreview.org) house
>most sources that courts and scholars utilize in their work? 
>
>Darren Hutchinson
>
>________________________
>Given what the justices have said about their uses of foreign and
>international law sources, I think we are missing the gist of Delay's
>comments on this.  I think the foreign citation and the internet
>research issues are not seperate issues (as Kim suggests), but
>related.  I know, for instance, that, in a speech a few years back,
>Justice Breyer complained that foreign and comparative law sources
>were difficult for the Justices to find (as compared with the usual
>American sources in the case reports).  He urged the lawyers he was
>speaking to to help the Court out in this regard by being more
>aggressive in bringing those sources to the Court's attention.   It
>seems plausible to me that Delay was criticizing what he takes as
>Kennedy's extraordinary efforts, via the internet, to troll around
>for novel sources of law in novel places (i.e. not Lexis or Westlaw)
>in service what he takes to be a problematic judicial agenda. 
> 
>Ken Kersch
>
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