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In his Ad Hominem column last week on the use of foreign law by American judges, Lawrence Siskind joins the many commentators (and several Supreme Court justices) who, quite simply, miss the point. Trotting out the tired bogeymen of the “slippery slope” and (what amounts to) “moral relativity,” Siskind suggests that judicial reference to foreign law threatens the very stability and predictability of American jurisprudence. In fact, nothing could be further from the truth. By refusing the blinders Siskind and others offer them, American judges instead strengthen our law by considering it within its entire relevant context � one which includes, rather than ignores, treatments by non-Americans of the same or similar issues. Siskind’s argument against judicial consideration of foreign law boils down to a single, curious charge � that, when it comes to consideration of foreign legal sources marshaled as evidence in support of a legal argument, American judges suddenly become incapable of exercising sound judgment as to what’s relevant and what’s not. He dresses up that argument by suggesting that such references, at least in cases involving the Fifth and Fourteenth Amendments, create some sort of unique, three-fold problem of “selectivity.” That is, he argues such references are problematic because they require judges to engage in “geographic selectivity,” “temporal selectivity,” and to “read history selectively.” But Siskind never really tells us why such “selectivity” is either problematic or to be avoided, or why we should, now, refuse to acknowledge potentially persuasive legal evidence that has to date been fair game in legal argument. Nevertheless, judicial “selectivity” appears to worry Siskind because he supposes there is no reasoned way for judges to distinguish which foreign laws or legal arguments might be appropriately referenced in their effort to interpret the meaning and application of American law. Describing the danger of what he calls “geographic selectivity,” Siskind reveals his concern: “Once the door is open to considering any other nation’s law, it is open to considering every other nation’s law, and there is no logical reason to prefer one nation over another.” But Siskind surely overstates the matter, grossly, or fails to understand the judicial process. Even the most ardent modern textualists (like Harvard Professor John Manning in “What Divides Textualists From Puposivists”) recognize that judges, and whoever else is trying to understand and apply the law, interpretively “construct” the meaning of words on a page by considering them within their broader “context.” This goes for simple statutes, treaties and, yes, even the Fifth and Fourteenth Amendments to our federal Constitution. Thus, it is not a question of whether judges can or do consider contextual evidence, but which evidence will they inevitably consider, when, and why. In contemporary jurisprudential terms, the debate on the propriety of foreign legal references is more properly construed as, essentially, an evidentiary one. That is, what contextual evidence should, or may, a judge take into consideration when determining the meaning of American law? Indeed, as Calabresi and Zimdahl’s “The Supreme Court and Foreign Sources of Law” makes abundantly clear, American judges have long considered foreign legal analysis to be part of that context when relevant to the issues at bar. Siskind and other opponents of judicial consideration of foreign law have the burden, then, of distinguishing why, in certain cases, judges should willfully disregard otherwise credible evidence that appears relevant. But rather than making that argument, Siskind offers one that borders on the absurd. He suggests that there is “no logical reason” a judge should prefer the laws of one nation to another, or within a nation, to prefer one of its laws to another. First, unless a judge is being whimsical, reference to foreign legal analysis � or any other legal reasoning for that matter � is not based on preference one way or another. Instead, it is based on the perceived (though often highly contested) relevance of that analysis as contextual evidence concerning the issues at bar. Indeed, the danger Siskind presupposes simply does not exist. There is no foreign law “slippery slope” such that by referencing one relevant foreign law or line of legal reasoning in a particular case, a judge becomes bound to reference all foreign laws relevant to that or any other case. Nor (to the best of my knowledge) has anyone who supports judicial consideration of foreign law seriously suggested that, in making such references, judges are affording precedential rather than merely persuasive weight to them. Instead, as Justice Ginsberg recently explained to her South African audience, proponents argue that when interpreting ambiguous and contested conceptions of value� as “liberty” and “equality” � judges may consider, as part of the relevant legal context, how other people who recognize similar legal rights and values interpret the same or similar concepts. This is not only exactly what the court majorities in Lawrence v. Texas and Grutter v. Bollinger did, but also what they said they were doing. Second, it is simply hard to make sense of what Siskind means when he says there is “no logical reason” for referencing one law or set of laws over any other. Even in the abstract, it takes only a moment to conjure up a whole range of not only logical, but also persuasive, reasons to, say in a case involving racial discrimination, avoid favorably referencing South Africa’s repealed laws of apartheid, while perhaps favorably considering France’s current workplace anti-discrimination statutes. Nevertheless, if Siskind is worried that our judges are not up to the task of sensibly assessing the legal relevance of various foreign laws on their own, I think he can rest assured that, in any real case or controversy in which such references might be relevant for judicial consideration, opposing counsel will surely offer the court ample logical reasons both for and against.
Siskind’s related arguments about temporal and historical selectivity fare little better than those he offers on geographical selectivity. That the laws of another country may change over time has no appreciable impact on the relevance of any particular foreign legal argument, practice, or finding in any case where it might provide persuasive contextual evidence of meaning. Again, merely referencing a foreign law in the course of judicial reasoning does not somehow magically import that law into our own or bind future courts. Nor should we cease to reference foreign law where relevant simply because we now consider some earlier references embarrassing or mistaken. As Siskind points out, both sides in Dred Scott (a case many Americans would like to forget) made reference to foreign law as the court has done in various cases for most of its history. That our laws and judicial opinions evolve with our society is neither an argument for nor an argument against referencing foreign law, where relevant, in American judicial opinions. I would not expect those of us in the legal profession to be surprised that, as our law changes, so too does the relevant evidence that supports a persuasive legal argument. As an alternative to considering foreign law, Siskind suggests that if judges need to determine the contours of our shared values, they need look no farther than “to this country, since our precedents and statutes are the best evidence of such values.” Leaving aside its jingoism, Siskind’s suggestion is singularly unhelpful. Foreign law rarely makes an appearance when our own statutes and precedents are clear and undisputed. Those are the easy cases. Instead, litigants and judges feel the need to broaden the context of meaning for American law when that meaning is fundamentally contested � that is, in the hard cases for which our own statutes and precedents in fact do not provide a neat, ready answer. It is neither surprising nor improper, then, that foreign legal references make their appearance in cases involving “hot-button social issues of their day” such as Reynolds v. United States (1878) and Lawrence. It is in just such moments of self-definition that we the people, as litigants and judges, broaden our gaze in an earnest search to discover � not who other peoples think we are � but who we think we are, and who we, as a people, want to be. For some reason, Siskind and others who oppose judicial reference of foreign law want to categorically exclude what appears, to many of us, to be relevant and often persuasive evidence. But other than stating the obvious � that American courts are bound only by American law � they have done little of the work that would be required to support their position. Why, for example, is it not at all relevant (rather than, perhaps, not persuasive) for the court to consider how other countries � who profess to honor the same (or similar) values of liberty and equality as our own � have dealt with sodomy or affirmative action? Given the tone of Siskind’s comments on cases like Lawrence and Grutter, which he pigeonholes as “liberal,” it is quite possible he just does not want to debate the substantive issues that tough constitutional cases present. If he’s uninterested in doing so, that’s fine. But it is quite another thing to argue that our judges should do the same. David Ismay is a judicial law clerk in San Francisco.

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