Profs Debate Foreign Law

Judge Richard A. Posner of the Seventh Circuit Court of Appeals criticized the use of foreign precedents in American jurisprudence—an issue that has been thrust into the spotlight by a recent court decision on juvenile execution—at the Harvard Law Review’s (HLR) annual Supreme Court Forum yesterday evening.

In the case, Roper v. Simmons, the justices decided that the execution of juveniles violates the Eighth Amendment, relying in part on foreign law to justify their decision. Vicki C. Jackson of Georgetown University and Ernest A Young of the University of Texas also participated in the panel. Philip C. Bobbitt, also from the University of Texas, served as the moderator of the forum, which attracted about 250 students, forcing several dozen to stand.

The forum is timed to coincide with the first publication of the HLR for the year, which traditionally covers the Supreme Court’s previous term. Posner wrote a 71-page foreword for the issue, while Jackson and Young wrote articles on the role of foreign law in American courts.

Posner focused his speech on the political nature of the Supreme Court and how justices often make decisions based on their personal preferences.

“To me it’s just a bunch of lawyers opining about criminal justice and capital punishment,” Posner said in regard to the Roper decision. “That carries no real authority with me. You have decisions that are made based on the political judgments of the justices.”

Posner said that foreign law is based on different foundational documents and that justices generally choose to look abroad only to bolster their existing opinions.

“Foreign judges do not have any sort of legitimacy in the American legal system,” Posner said. “And then there’s the pure opportunism of it. The Supreme Court only looks abroad to confirm its prejudices, not to challenge them.”

Jackson defended the Court’s ruling in Roper, saying that the Court has always incorporated foreign law and that it should “engage” foreign precedents instead of “converging” toward them.

“The history of the eighth amendment is marked by courts looking to the outside,” Jackson said.

She also said that in deciding the scope of the Eighth Amendment, which bars cruel and unusual punishment, the Court has often looked to the rest of the world. In its first Eighth Amendment case, Jackson said, the Court looked to the legal systems in Britain and India for guidance.

Jackson read a passage from an article that Posner had written in 1996 where he advocated looking abroad to find the grounds to invalidate a law punishing drug possession too harshly.

“Well, I do like to be on both sides of an issue; that way I can bat .500,” Posner said to loud laughter in reference to the potential contradiction.

Young said that the heart of the controversy was whether the Supreme Court was submitting to the authority of foreign courts or whether it was being persuaded by their reasoning.

After reading the opinion, Young said he concluded that the Court was not being convinced by the foreign courts’ analysis, but that it was merely accepting their outcomes on face value.

This “nose-counting,” as Young called it, meant that “the Court was not ‘engaging’ foreign law, but was using it authoritatively.”

Young said that in the end he agreed with Jackson that justices could “engage” foreign opinions, but that doing so would mean looking to the courts’ analysis, not just their decisions.

“You can see why it’s hard to argue against engagement—you’d be arguing for the Supreme Court to be stupid and ill-informed,” Young said. “But Professor Jackson, who calls for ‘engagement,’ would fail Justice Kennedy [the author of the Roper opinion] in her comparative constitutional law class.”