NCPA - National Center for Policy Analysis


March 27, 2006

Recently, Justice Ruth Bader Ginsburg gave a speech endorsing the citation of foreign law in decisions by American courts, and compared those who opposed it to those responsible for the decision in the infamous Dred Scott case, says Pejman Yousefzadeh.

The speech was representative of the increased attention legal circles have paid to whether judges should let foreign law influence the opinions of an American court, says Yousefzadeh. While it is of interest to see what foreign courts are doing, he says, there are very legitimate reasons for resisting the temptation of foreign law, including:

  • Questions of democratic legitimacy -- the fact that foreign judges and legislatures are not answerable in any way to American democratic procedures.
  • Cherry picking of foreign laws -- picking out a particular law or laws to validate a predetermined outcome while ignoring other laws that may argue against that outcome.
  • Extremism -- judgments differing from the mainstream opinion of the country citing law from a country that dramatically differs in opinion.

None of this is to argue that foreign law does not have its place in American jurisprudence, says Yousefzadeh. But there is a difference between acknowledging foreign law as a basis of the American jurisprudential system and using foreign law to supplement existing American jurisprudence.

Source: Pejman Yousefzadeh, "Judge Dred?" TCS Daily, March 21, 2006

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