history of the contested use of foreign law in American courts

Finkelman, Paul <paul.finkelman@albanylaw.edu> Paul.Finkelman at albanylaw.edu
Fri Mar 16 07:25:17 PDT 2012


I did a piece some years ago pointing out the enormous amount of foreign used by they Supreme Court up until the early twentieth century.  Many of the decisions based on foreign law are still good law today.

See Paul Finkelman, Foreign Law and American Constitutional Interpretation:  A Long and Venerable Tradition, 63 NYU ANNUAL SURVEY OF AMERICAN LAW 29-62 (2007).



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Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
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From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of fishman at duq.edu [fishman at duq.edu]
Sent: Friday, March 16, 2012 9:17 AM
To: seth tillman
Cc: conlawprof at lists.ucla.edu
Subject: Re: history of the contested use of foreign law in American courts

Seth:

For a description of reception of English law into the early republic, see
Elizabeth Gaspar Brown, British Statutes in American Law, 1776-1836
(1964). The Pennsylvania Supreme Court issued a report in 1808 identifying
English statutes accepted into Pennsylvania, in Binney's Reports (but
don't have exact vol. and page no.).

Joel

> Â
> Â
> There is a history of popular opposition to the use of foreign law in
> American courts.
> Â
> 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 originally," repealed" the common law at the start of the Revolution.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.
> Â
> 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.
> Â
> Seth
>
> Seth Barrett Tillman
> Nat’l Univ. of Ireland, Lecturer of Law
>
> http://ssrn.com/author=345891Â Â
> 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.Â
> Â _______________________________________________
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--
Joel
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