Question/a suggestion to the list

Paul Horwitz phorwitz at hotmail.com
Fri Jan 13 11:37:59 PST 2006


I don't mean to raise a point that's at cross purposes to the discussion, 
but Professor Levinson's points about parochialism and what we are training 
law students to do when we teach them constitutional law raises a point I 
brought up in a question at one of the AALS sessions on the subject, and 
that is the role of state constitutional law.  If the discussion concerns 
only the use of foreign law by the courts, my point is off-topic; but if it 
includes what we teach in constitutional law courses, I think my point is 
on-topic.

The simple point I want to raise is that, from a cost-benefit standpoint, it 
might make as much or more sense to make more room for state constitutional 
law in a standard con law course as it does to make room for foreign law.  
State constitutional law, too, can render useful points for comparison with 
federal constitutional law across a broad range of issues, although to be 
sure the law is less alien and thus might not offer contrasts that are as 
bright as those presented by foreign constitutional systems.  But against 
the comparative similarity between state and federal constitutional law, 
which I take as a downside of using state law rather than foreign law, we 
might balance an upside -- that it's more likely an American constitutional 
law professor can actually master state constitutional law, if he or she 
makes the effort, as opposed to trawling around clumsily in foreign law.

I think this proposal speaks to Sandy's two points.  With respect to 
parochialism, there is a sense in which, while it may be parochial to focus 
on the United States constitution to the exclusion of everything else, it is 
equally parochial to focus on foreign law to the exclusion of state 
constitutional law.  In a very real way, I think that foreign law is simply 
becoming part of the set of materials whose mastery (or, really, seeming 
mastery) constitutes part of the admission criteria for membership in the 
community of certified cosmopolitan legal intellectuals.  Of course, 
igorance of state constitutional law is no barrier to membership in that 
club.  The intelligentsia can be parochial in their concerns too, and it 
seems to me that to neglect state constitutional law, which is so active and 
on which so much may or could depend in American life, is a sign of that 
parochialism.

With respect to what we are attempting to accomplish when we teach 
constitutional law, I agree that we are largely not teaching students to 
become constitutional litigators, and certainly we are not, at most schools, 
teaching students what they need to become litigators in brand-name 
appellate boutiques or appellate departments at major firms.  If we were, I 
-would- recommend teaching foreign law, because I think that vocabulary is 
becoming part of the toolbox for constitutional litigation in the Supreme 
Court -- or, again, that it is at least becoming part of the vocabulary 
required for membership in a particular social community of credentialed, 
"right-thinking" constitutional lawyers.  But if we are teaching students to 
be ready for the -possibility- of litigating constitutional issues at a 
-local- level, or even if we are teaching them to become effective -local- 
leaders, wouldn't they get more out of learning state constitutional law 
than foreign law?

As it happens, I'm also a Canadian lawyer, and I make more use of foreign 
law (although only a limited amount) in my teaching than I do state 
constitutional law.  But that's not necessarily a good thing.  I think it 
was Mark Tushnet who commented at the session I attended that state 
constitutional law experts in the legal academy are often a breed apart, and 
not necessarily part of the dialogue among scholars of the federal 
constitution.  That's too bad; in considering what we should be doing as 
part of the project of teaching constitutional law -- a different question, 
I admit, from the question of what the Supreme Court should be citing -- it 
seems to me that state constitutionalists' voices should be heard in the 
discussion.  If, as I assume, we can't teach everything in a con law class 
given limited time, perhaps it makes more sense to focus on state law than 
foreign law.  I fear that teaching foreign law, despite its evident uses, is 
really a continuing form of reproducing legal/intellectual elites in our own 
image, rather than trying to figure out what or students ought to know.

Paul Horwitz
Southwestern University School of Law
Los Angeles, CA






>From: "Sanford Levinson" <SLevinson at law.utexas.edu>
>To: <mschor at suffolk.edu>, <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
>Date: Fri, 13 Jan 2006 11:03:14 -0600
>
>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.
> >
> >
> >
> > 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.
> >
> >
> >
> > I apologize if I have repeated any of the points.
> >
> >
> >
> > Galya Ruffer
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> > /GCSISK/sisk.html <http://personal2.stthomas.edu/GCSISK/sisk.html>
> >
> >
> >
> >
> >
>
>


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