Wednesday, April 13, 2005

Should the Court Cite Foreign Sources of Law?

Orin Kerr poses an excellent hypothetical here.

2 Comments:

Blogger P. G. said...

I think his point is flawed both legally and realistically.

Legally, as we all well know, there's a difference between citing the bible and citing foreign law. There's an express constitutional prohibition on citing the bible, in the form of the establishment clause. There is no similar express prohibition on citing foreign law.

Citing foreign law would better be analogized to the Supreme Court's quite regular and uncontroversial practice of citing lower court authority as persuasive.

Realistically, how often does the Supreme Court cite foreign law anyway? The only times I've heard of it coming up are in the 8th amendment cases. I'd suggest that's more because of the special standard used in 8th amendment cases (which expressly relies on evolving social norms), a standard which isn't used anywhere else.

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