history of the contested use of foreign law in American courts
sbarretttillman at yahoo.com
Fri Mar 16 02:01:59 PDT 2012
There is a history of popular opposition to the use of foreign law in American courts.
At the time of the revolution many states passed reception statutes, i.e., receiving the common law up to that time. But not all. Pennyslvania, originally," repealed" the common law at the start of the Revolution. Apparently, this proved unworkable and in 1777 received the common law through 1776.
Circa 1808, in Kentucky, there was a movement to "repeal" the use of British (UK) precedents in KY courts. Henry Clay participated in the process of amending the statute. According to some histories, Clay limited the scope of the statute by putting in language that permitted use of British precedents up to 1776. According to others, Clay expanded the scope of the statute. Originally, the bill only prohibited the use of British precedent as binding authority, but Clay's amendments prohibited courts from considering such authority, even if not binding. I don't know the truth of the matter. Possibly both? But it does show that the public has taken an interest from time to time with regard to the application of foreign law in American courts.
Seth Barrett Tillman
Nat’l Univ. of Ireland, Lecturer of Law
Seth Barrett Tillman, Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 106 Nw. U. L. Rev. Colloquy (forthcoming circa April-May 2012) (on file with author), http://ssrn.com/abstract=2012800.
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