Question/a suggestion to the list

Sanford Levinson SLevinson at law.utexas.edu
Fri Jan 13 09:03:14 PST 2006


I'm curious if opponents to foreign-law citation would be equally critical of "negative" citation, i.e., sentences of the form, "Here in America we believe in protecting the rights of ____, unlike such benighted systems as ___, which allow the state to run amok, see, e.g., Constitution of ___ (allowing some bad thing)."  After all, Scalia in his Davey dissent seemed happy to cite the French headscarf law as an example of such badness.  So do objectors to foreign citations rest ultimately on the view that it is bad to suggest that we could actually learn something positive from looking abroad?  (In spite of the tone of my question, I should note for the record that I have publiished a piece, in the Texas Internional Law Journal, that is surprisingly (at least for me) close to Scalia's position with regard to looking abroad when interpreting the US Constitution, as opposed to looking abroad for useful empirical information (which I think that even Scalia has endorsed in a speech before the American Society of Comparative Law (or something like that).)
 
Where I agree 200% withMiguel is that there is no excuse whatsoever for law professors to be so parochial as judges.  Contrary to what we sometimes think, we are not judges and don't have to be confined in our own choices of teaching materials by their official roles.  Nor, contrary to what we seem to think, are we really preparing students for careers as constitutional litigators, since extremely few will ever do that.  As I have argued before, the main rationale for requiuring courses in constitutional law is to prepare our students to be more effective leaders, and it is essential that they realize there's a big world out there that has much to teach us (sometimes, to be sure, by negative exampl).
 
sandy

________________________________

From: owner-lawcourts-l at usc.edu on behalf of Miguel Schor
Sent: Fri 1/13/2006 10:52 AM
To: GRUFFER at depaul.edu
Cc: GCSISK at stthomas.edu; lawcourts-l at usc.edu; CONLAWPROF at lists.ucla.edu
Subject: Re: Question/a suggestion to the list



It strikes me that the question of impeachment for judges who cite
foreign law is a normative (as well as a legal) question wrapped up in a
larger socio-legal problem.  The US is exceptional in its criticisms of
the practice.  This criticism says less about our belief in the virtues
of our own constitution than it does of our ignorance of the
constitutional experience of other nations.  Americans have an appalling
lack of knowledge about the world around them and it is no surprise that
this ignorance is reflected in our constitutional culture.  Judges and
litigants in other nations cite our constitution and cases not because
they are particularly wonderful but because they make up part of the
constitutional culture of those nations.  The bottom line is that the
rest of the world gets to learn from our experience while we struggle to
profit from the constitutional experience of other nations.  Miguel

Miguel Schor, Associate Professor of Law, Suffolk University School of Law

Ruffer, Galya wrote:

> 
> Although there has already been much discussion regarding Greg Sisk's
> engaging questions, I want to briefly respond to a couple of the
> points he makes that I do not think were yet touched upon:
>
> 1. While I strongly concur that a constitutional text is an outgrowth
> of a particular political compromise and that its interpretation rests
> within a particular national culture and institutions, one cannot
> ingnore that the most recent wave of democratic constitutions all
> incorporate rights that derive from international human rights.
> Therefore, when judges on a constitutional court (of which there are
> many) look to what their collegues have to say in another
> constituitonal court in another country with its own particular
> balance of power and culture, they are ONLY looking at how that court
> interpreted a specific legal right or guarantee such as "equal
> protection". The assumption of these courts is that certain rights
> such as "equal protection" or "free expression," at this point in time
> have both an international and a national dimension that have to be
> considered. It seems to me that it would be foolish not to recognize
> that the world has changed and the answer to the question "what is a
> constituition" has also changed to a certain degree.
>
> 
>
> 2. In response to "why not cite the Saudi Arabian court" or a "Chinese
> court" - because these constitutions do not derive from the same set
> of irights nor do these judicial systems have judicial review.
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> 3. Having been an early entrant into constitutional government, the US
> must now look outside and see how different the world has become. That
> is why this is such an important national discussion.
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> I apologize if I have repeated any of the points.
>
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> Galya Ruffer
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> /GCSISK/sisk.html <http://personal2.stthomas.edu/GCSISK/sisk.html>
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