Monday, January 24, 2011

Whose Opinion Matters?

Citation to Foreign Sources by the United States Supreme Court and the Advocates General of the European Union's Court of Justice
By Matthew Laroche

Matthew Laroche, a 2010 summa cum laude graduate of Albany Law School and former Editor-in-Chief of the Albany Law Review, is currently a first-year associate at Milbank in New York City. He will serve as a law clerk  to Judge Richard Wesley of the U.S. Court of Appeals for the Second Circuit beginning in August 2011.
In this working paper, Mr. Laroche explores the citation to foreign sources in opinions of the United States Supreme Court and the European Union’s Court of Justice. The use of such citations by American courts has been the subject of a heated debate among Justices, politicians, scholars, and other commentators. This paper goes beyond the heat and sheds some light on the issue.

[A]s it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that sources of its supply have been exhausted.
- Justice Matthews[1]

There are few issues more hotly debated than the citation to foreign or international law[2] by U.S. courts.  It divided the Supreme Court and sparked a vigorous debate among academics and other jurists.[3]  In fact, the practice of U.S. judges citing and referencing foreign sources has been the subject of congressional hearings[4] and resolutions,[5] and vigorously discussed during the confirmation hearings for Supreme Court Justices Roberts, Alito, and Sotomayor.[6]  Interestingly, many would, and have, argued that this is not a new debate, and may be at least two millennia old.[7]

In an attempt to bridge the gap in the research of this specific area, this paper pursues two avenues of analysis.  First, this paper traces the reference to, and reliance on, foreign sources by the U.S. Supreme Court since the Founding to identify whether this practice is a traditional mechanism of American jurisprudence or whether it is only a novel approach to judging instituted in recent high-profile constitutional cases.  Second, this paper then assesses the main arguments for and against referencing foreign sources in domestic decisions. 

It is at this point in the research (i.e., after reviewing the U.S. practice) where most articles written by American scholars and jurists stop their analysis.  This paper attempts to bridge the gap between the American debate and the foreign experience of using foreign sources in judicial decisions by exploring the practice of the Advocates General of the Court of Justice of the European Union to cite to both the U.S. Supreme Court and other foreign sources.  By doing so, this paper attempts to illustrate the benefits of citing to foreign sources.  As a result, it argues that the U.S. Supreme Court should continue to reference foreign sources in certain types of cases, so long as it does so responsibly.    
[1] Hurtado v. California, 110 U.S. 516, 531 (1884).
[2] Although foreign or international law could constitute a wide variety of materials from different time periods, the terms foreign and international law (“foreign sources”) for the purposes of this paper shall include statutes and cases arrived at after American independence including foreign and international tribunals, as well as writings of foreign jurists and scholars.
[3] See infra Part II.B.
[4] Appropriate Role of Foreign Judgments in the Interpretation of American Law: Hearing on H.R. Res. 568 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 108th Cong. 57 app. (2004).
[5] H.R. Res. 446, 108th Cong. (2003), H.R. Res. 568, 108th Cong. (2004), H.R. Res. 97, 109th Cong. (2005), S. Res. 92, 109th Cong. (2005).
[6] See, e.g., Transcript, Sotomayor Confirmation Hearings, N.Y. Times (July 14, 2009), available at
[7] Vincent Martin Bonventre, Aristotle, Cicero and Cardozo: A Perspective on External Law, 69 Alb. L. Rev. 645, 646–48 (2005) (noting that Aristotle lectured advocates to not simply argue “the letter of the written law,” but to reference common principles of universal law to realize “the full purpose of the law”).

Read the entire paper here.