Globalizing Justice: Critical Perspectives on Transnational Law and the Cross-Border Migration of Legal Norms

3. Foreign Law in Domestic Courts: Different Uses, Different Implications

CHAPTER THREE Foreign Law in Domestic Courts Different Uses, Different Implications CHRISTOPHER A. WHYTOCK One can be forgiven for wondering if the debate about references to foreign law in U.S. court opinions is much ado about nothing.1 In none of the cases that sparked the debate—Atkins v.Virginia,2 Lawrence v.Texas,3 and Roper v. Simmons4 —did the U.S. Supreme Court treat foreign law as binding law that could override U.S. law. Nor, as two recent articles empirically demonstrate, is the use of foreign law by U.S. courts anything new.5 For courts in other countries, the use of foreign law is “decidedly commonplace.”6 Yet “[t]here is little evidence to suggest parallel mobilization in opposition to foreign citations by courts abroad”7 —which suggests that the controversy in the United States indeed might be disproportionate to the problems posed by comparativism in judicial decision making. As Noga Morag-Levine states, “Supreme Court opinions are replete with references to extra-legal sources such as philosophical treatises and social science research. Why single out foreign case law as deserving of special condemnation?”8 After a careful analysis of the debate, Mark Tushnet concludes that what really is motivating critics of foreign law in U.S. courts is concern about the appropriate scope of judicial power, not foreign law per se.9 Nevertheless, the question of foreign law in domestic courts is an important one. Skeptics correctly warn that the use of foreign law—at least in the context of constitutional interpretation—raises serious issues of constitutional theory10 and comparative methodology.11 Those more sympathetic to 45 46 GLOBALIZING JUSTICE the use of foreign law not only disagree with skeptics’ arguments that there is no “constitutional license” to use foreign law,12 but also claim that a greater willingness of domestic courts to use foreign law can improve the quality of constitutional decision making. The focus of existing research and commentary on both sides of this debate is on the constitutional issues associated with references to foreign law in U.S. court opinions and, more generally, on the important normative concerns about whether and how domestic courts should use foreign law. This work, however, focuses little attention on the actual consequences of domestic court references to foreign law and therefore eventually relies on untested empirical assumptions about what those consequences might be.13 Nonconsequentialist reasons to favor or disfavor foreign law in domestic courts exist, of course.Yet a well-informed, normative dialogue must be attentive to consequences, at least if it is to extend beyond the narrow confines of more formal variants of constitutional theory. The use of foreign law in domestic courts also raises interesting questions of positive theory—particularly about the relationship between different uses of foreign law and the cross-border migration of legal norms that so far are unexplored. For these reasons, this chapter proposes a social science approach that focuses on the empirical implications of foreign law in domestic courts. Unfortunately, the existing literature does not provide the conceptual foundations for exploring these implications. Scholars generally appreciate that domestic courts can use foreign law in different ways and that these differences are analytically significant, but the result has been an overabundance of typologies of different uses and a lack of conceptual clarity. Therefore, in the main part of this chapter, I will attempt to take a small conceptual step forward by consolidating into a single, manageable typology the many different uses of foreign law in domestic courts that already have been identified by scholars. No single typology can be useful for all purposes, and ultimately an empirical project motivated by a particular theory calls for concepts that are motivated by the same theory.Thus the goal is modest: to provide a language for a preliminary exploration of the empirical implications of different uses of foreign law that may be useful to a wide range of scholars. Next, I will build on the typology by considering the consequences of different uses of foreign law in domestic courts and the role of domestic courts as agents in processes of norm internalization and transnational policy diffusion. In particular, I will use the typology to examine the claim made by some critics that foreign law references in U.S. court opinions lead to the internalization of non-U.S. norms into U.S. society by changing domestic law or policy. Finally, I will suggest several avenues for future research...