Question/a suggestion to the list
Sisk, Gregory C.
GCSISK at stthomas.edu
Thu Jan 12 22:28:22 PST 2006
In response to MH, I must plead mutual confusion, that is, I'm not at all
sure what he's saying. I certainly didn't argue that presenting views
effectively to the general public is bound to fail or that convincing the
general public of the benefits of citation to foreign court decisions in
constitutional cases would be a salutary thing that sadly cannot succeed.
I'm all for enhancing public understanding and attempting to bridge the gap
between the lawyerly elite and the general public (although I'd argue that
we academics bear a good share of the fault for widening that gap.) I
simply reject the propositions that this is a case of simple lack of
educated understanding, rather than a difference in underlying values, or
that the educated class is of a single mind on the question. And for MH to
suggest that I must be "afraid of democracy" -- when I rather strongly
challenged litigation as a venue for policy-making, argued for restraint on
the power of the courts, and contended for preservation of the
self-governing powers of the people through democratic governance -- is,
well, something of a non sequitur.
I was responding (pointedly to be sure, for which I cannot complain about a
pointed rebuttal) to the nature of the prior comments, which I read as
suggesting that all that stands in the way of joyous public acclaim for
regular reference to and reliance upon foreign decisions by American
constitutional courts is that we in the academy must figure out how to
translate the manifest wisdom of the academic sages to the uneducated public
(in a respectful manner to be sure). My points in response speak for
themselves, amd fall essentially into two categories. First, reliance on
foreign decisions in interpreting the United States Constitution is far from
a self-evidently wondrous and universally-celebrated development even among
academics. Moreover, general public skepticism about citing to foreign
authority to interpret the United States Constitution strikes me as
well-grounded and reflecting good and ordinary common-sense, rather than
being an unfortunate consequence of lack of education. Second, for the
reasons outlined and which won't be repeated here, I don't think the
increase in citation to foreign courts to address the meaning of American
constitutional provisions is a healthy one. And far from being afraid of
democracy, my points went strongly in the opposite direction. I deprecated
the use of the courts to remove matters of social controversy from public
deliberation and I questioned the use of legal argumentation -- now to be
further complicated by another layer of foreign language and foreign law --
which tends to reserve dialogue on matters of public importance to the legal
elite and to distance the people.
Mark Tushnet makes a salient point, although one which in my view is not
enough to justify the practice. He argues quite reasonably that reliance on
foreign court decisions as persuasive authority or to advance a particular
line of argument is no more objectionable, and just as appropriate and
helpful, as reliance on other secondary authority, such as law review
articles. When a court cites to a law review article (and being the
frequent author of such, I wish they would do so more often), it is well
understood that the court is simply giving fair attribution to a well-stated
summary of the state of the law or analysis of a legal point. If it were
clearly understood by both the judges citing to them and the persons reading
the opinions that such a citation to a foreign court decision was of the
same persuasive value as that of a law review article, i.e., having no
authority by virtue of the source but merely because of the cogency of the
argument made, my concerns would be alleviated but would not disappear.
To begin with, I do not think that understanding has prevailed or been made
clear. When the Supreme Court relies heavily upon the laws of other nations
on the use of the death penalty, it does not appear that the Court is simply
adducing this as a well-articulated argument but rather as an authoritative
statement. While as a matter of public policy, and frankly of moral
urgency, I do think world trends on the death penalty to be a powerful
statement, I cannot agree that the meaning of the United States Constitution
can hinge on such foreign developments.
In addition, my objections remain with respect to the complicating nature of
citations to foreign law and foreign judgments and the alienation of the
people from dialogue and debate on matters of public importance. If being
fully engaged in constitutional debate henceforth demands a fair degree of
familiarity with foreign law and courts, then lack of easy accessibility and
finite capacities of most human beings, even including lawyers and law
professors, means that those capable of fully participating will be fewer
and fewer and the field will become more and more esoteric. I don't think
that's healthy. Any reasonably well-educated and informed jurist or lawyer
knows how to search for, evaluate, and marshal other court decisions and law
review articles and treatises in making a constitutional argument. Very few
would know where to begin in searching for foreign court decisions. And, as
I've noted, even fewer would know what to make of what they find. While a
law review article on the First Amendment is as easily understandable as a
court case on the same matter, a foreign court decision on a matter of
freedom of expression requires investment of substantial study into the
background of that nation's legal system, alternative texts, legitimacy of
translations, etc., etc.
From: Mark Tushnet [mailto:tushnet at law.georgetown.edu]
Sent: Thu 1/12/2006 10:41 PM
To: Sisk, Gregory C.
Cc: 'lawcourts-l at usc.edu'; 'CONLAWPROF at lists.ucla.edu'
Subject: Re: RE: Question/a suggestion to the list
I've written on this question, with one article forthcoming in
Minnesota, another in Baltimore, and probably [I hope I can get it
done] in Albany, so I won't address any but this of Greg Sisk's
arguments here. The one that caught my attention was this:
"But to cite to such foreign decisions inevitably leaves the
impression that they have some authoritative weight." My
question is this: What of citations of law review articles (to
sharpen the point: by members of this list, and making
arguments of law rather than presenting empirical information)?
From: MatthewHPolSci at aol.com [mailto:MatthewHPolSci at aol.com]
Sent: Thu 1/12/2006 11:30 PM
To: tushnet at law.georgetown.edu; Sisk, Gregory C.
Cc: lawcourts-l at usc.edu; CONLAWPROF at lists.ucla.edu
Subject: Re: Question/a suggestion to the list
Since I introduced the "local people" element into the argument, I have to
respond to one part of Prof. Sisk's response.
1. Any attempt to present views effectively to "local people" is bound to
If it can't be done, it can't be done? Who has tried, when, where, and how?
What theory of learning and persuasion is involved here?
2. It is a good thing that it is bound to fail.
That says maybe there is a chance that it would work, but it would be bad if
Respect to a colleague should forbid my saying "Huh?" So I do not say it. I
merely plead confusion.
Why on earth is not the Sisk Doctrine equally good for all aspects of law?
First Amendment? Second Amendment? Fourth Amendment? Fifth Amendment?
Heaven fobid that one should use the words "slippery slope."
One final question. As a matter of procedure, does the Sisk Doctrine apply
to law, but not to the other fields of expertise and policy where public
opinion (and hence the opinions of the "local people") is empirically (as
well as normatively) relevant.
I usually do not say such things as this. But It strikes me, as one who has
been around this business for some years, that law professors (if the Sisk
Doctrine be taken as a norm) must be scared of democracy.
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