Looking Out Over the Crowd: A Moderate’s Take

In a previous post, I asked whether there was anything new to be said on the issue of the role of foreign and international law in interpreting the U.S. Constitution. Roger Alford wrote a thoughtful comment (also posted on Opinio Juris), laying out what he sees as some of the big issues that remain to be explored among scholars and courts. His post got me thinking: How will the debate over foreign and international law evolve over the next, say, ten years? And what will second-generation scholarship in this area look like? I, for one, hope it looks something like the following:

First, I hope we all tone down the rhetoric. Justice Ginsburg has a point when she blames the hysterical tone struck by many Congressmen (and, I would add, by Justice Scalia) for fueling the death threats that she and Justice O’Connor have received from the “irrational fringe”. On the other hand, she and others in the so-called “internationalist” camp surely deserve some of the blame for the ratcheting up of the rhetoric: They wrongly dismiss the democratic legitimacy concerns of those in the so-called “nationalist” camp as just so much neo-isolationist thinking. Is the simplistic, Crossfire-esque tone of the debate really helpful, and why does everyone feel the need to choose up sides? Am I an internationalist or a nationalist? I have no idea, because I don’t know what these labels MEAN.

Instead, I hope future debate on these issues becomes increasingly dominated by moderates, who reject these simplistic labels. In fact, the tide may already be turning: A recent editorial in the Washington Post called for moderation, and pointed out that “in the debate over foreign law, neither side has a monopoly on wisdom.” So what does a nuanced debate on the role of foreign and international law – one dominated by moderates in both camps — look like?

It begins with some honesty about what exactly is going on here. Internationalists harm their own position when they argue that courts who rely on foreign and international law in interpreting the U.S. Constitution are not doing anything new – that “international law is part of our law,” and courts are simply interpreting and applying it as they have since the Founding. But international human rights law is largely a twentieth century creation, and the Founders certainly never envisioned a world in which international human rights treaties would purport to regulate the treatment of a nation state’s own citizens within its own borders. Internationalists, in my view, need to admit that the sources of international law have changed – and with that transformation come serious questions regarding the legitimacy of incorporating foreign and international human rights norms into the American Constitution – questions that deserve to be taken seriously. Similarly, internationalists take the easy way out when they assert that “these sources of international law are not binding, they’re merely persuasive.” But labeling a particular source “persuasive, not binding” does not necessarily render it a legitimate source for constitutional interpretation. (I might consider a Supreme Court citation to Shakespeare “legitimate”, while a citation to commentary from the The Daily Show or the Bill O’Reilly Show might be less “legitimate”.) Similarly, it might be perfectly sensible to rely on a judicial decision from the UK, because we share a common legal, social and political history with England – whereas citation to a decision from the Zimbabwe Supreme Court might be more problematic, for obvious reasons. (In fact, Justice Breyer conceded that his reliance on the Zimbabwe Supreme Court’s views on the death penalty a few years ago may have been a “tactical error” — after all, he admitted, Zimbabwe is not exactly the “human rights capital of the world.”) Finally, the “persuasive, not binding” argument merely begs the question: Just how persuasive? How much weight is a court giving to a particular foreign source?

Nationalists, on the other hand, need to recognize what lies at the heart of this debate. It is not simply a debate over the relevance of foreign legal materials in interpreting the Eighth Amendment of the U.S. Constitution. It is, in a larger sense, a debate over what role U.S. courts will play in the emerging transnational judicial dialogue among the world’s courts on a whole range of legal issues. And the outcome of that debate will have enormous implications, not just internally for the Court’s jurisprudential approach to domestic constitutional analysis, but also externally: It will have a tremendous impact on the ability of U.S. courts to play a role in shaping and influencing the development of transnational judicial dialogue, and through that dialogue, the development of international legal norms on a wide variety of issues – not just human rights issues. Nationalists tend to the view the conversation as a unidirectional monologue, in which U.S. courts simply act as passive recipients of foreign norms. Instead, it can and should be a true dialogue, in which U.S. courts — through assertive and robust participation in transnational judicial dialogue — can serve as powerful champions for American norms at the transnational level.

In short, I predict that future scholarly, judicial, and political debate on these issues will be led by moderates who defy easy pigeonholing into either “internationalist” or “nationalist” camps. The moderates will recognize the reality that the world’s courts, through transnational judicial dialogue, are playing an increasingly powerful role in shaping the norms that govern the international legal system, and they will shape their views of the debate accordingly. My personal moderate’s take is this: U.S. courts should participate in dialogue on a whole range of legal issues — not only because we can learn from the experiences of other countries, but because our participation will ensure that American norms (for example, on speech) play a powerful role in the development of international law. Moreover, by participating in dialogue, the U.S. Supreme Court can become a leader among the world’s courts in developing rigorous analytical approaches to consideration of foreign and international legal sources — thus ensuring the development of a transnational judicial dialogue that is not only robust, but also principled.

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26 Responses

  1. Nate Oman says:

    Melissa: I wonder if there might be an inherent problem with a future of moderate-dominated conversation. It seems to me that intellectual conversations ultimately tend to get dominated by the voices the produce heuristic devices that usefully structure a complicated set of issues. The problem with moderate nuance is that it frequently fails to offer anything the simplifies and structures the discussion. In contrast, extremists have the advantage of telling clear simply stories that give you a set of questions to ask and answer and a set of positions to defend or excoriate. They can do this, however, precisely because they are — as you point out — simplistic.

    It is a bit harder to see how nuanced dialogue provides a powerful heuristic structure.

  2. Edward S. says:

    I wonder if U.S. judges can persuade European judges to permit the death penalty. That would be an interesting “transnational judicial dialogue” that would help shape international legal norms. Of course, if that happened, everyone would have to change sides in the current debate, as the current debate is mostly a proxy for subsnative political views.

  3. Melissa Waters says:

    Ed, I think it’s important to remember that transnational judicial dialogue is not simply a trans-Atlantic phenomenon. Increasingly, it includes courts in Africa, Canada, Australia, New Zealand, Central and South America (though to date, courts in Asia and the Middle East have not really been represented in the dialogue). Thus while American courts championing, say, U.S. norms on speech may not persuade judges in Europe, it may well have an influence in those countries whose courts have not yet made up their minds.

  4. Mike S. says:

    Aside from the founding of the Liberian government, when has the U.S. government’s structure (and governance) been used to prompt political or judicial actions abroad? Though the British high court’s recent torture-as-evidence ruling might have been [indirectly] prompted by the actions of coalition troops in Iraq, I’m drawing a blank on this broader question.

    Perhaps once we understand how the U.S. government as an idea or practical system has impacted foreign governments, only then should we consider how foreign courts have mimiced or followed the leadership of our judicial system.

    ps- Alongside death penalty law, U.S. libel law is another odd-man-out legal tradition. … And given libel’s centrality to press oversight of the government/private sector, perhaps this is a good place to initiate a more focused discussion.

  5. Nate Oman says:

    Mike S.: You are right that the U.S. Constitution has not been as popular a model as the Westminster system. On the other hand, lots and lots of countries have been setting up powerful constitutional courts and have increasingly adopted robust notions of judicial review. Canada is a good example of this; so is Israel. I think it is safe to say that when other countries start creating politically powerful constitutional courts they are looking to the U.S. Supreme Court as the urtext. Although this is not exactly an example of judicial dialogue, it does suggest some flow of constitutional ideas from America to other nations.

  6. Melissa Waters says:

    Following up on Nate’s comment, there’s no question that the U.S. Constitution — and U.S. Supreme Court jurisprudence interpreting it — have played an extraordinarily powerful role in influencing constitutional courts around the globe. In essence, our courts have long been “exporters” of American conceptions of human (read, constitutional) rights to the rest of the world. Justice Claire L’Heureux-Dube of the Canadian Supreme Court gave a speech a few years ago in which she acknowledged this phenomenon, and then described the DECLINING international influence of the Rehnquist Court. She attributed the decline to the fact that the U.S. Supreme Court had increasingly taken itself out of the transnational judicial dialogue by refusing to cite foreign court decisions in its work.

  7. The most hysterical tone struck by anyone has been Justice Ginsburg’s – the comments of ” many Congressmen (and, I would add, by Justice Scalia)” have been seriously linked to threats received by Justice Ginsburg only by….Justice Ginsburg.

    The comments of Justice Scalia, particularly as it relates to the use of foreign law and abortion rulings here, were spot on and can only be considered inflammatory by those who think everything Justice Scalia says is inflammatory.

    I’m not convinced that a Supreme Court dragging in foreign cites as part of an effort to participate and be an influence in a transnational judicial dialogue is in our best interest – if the lack of cites means we’re not players in this dialogue amongst other courts seeking to have a larger say in how their countries are run – well, so be it. That may make Justice Kennedy’s summer trips to Europe more uncomfortable but that’s a chance I’m willing to take.

  8. Mike S. says:

    Thanks Nate and Melissa for your thoughtful responses.

    Though I must note that I find it ironic in light of your posts that our Supreme Court Justices have recently made their most “impactful” speeches whilst in foreign countries (or perhaps “bombastic” is the better term). I’m, of course, referring to Justice Ginsberg’s comments in South Africa on threats to the American judiciary by Republican lawmakers and Justice Scalia’s comments in Switzerland on enemy combatants. … Though not legally binding, per se (except perhaps in recusal motions), perhaps these point to a newer, under-the-radar dialogue press scrutiny has push the Justices to. This is not to say that speeches are on par with citations or opinions citing foreign court decisions, but it’s noteworthy nonetheless, though slightly off topic.

    Thanks again-

  9. Mike S. says:

    I meant to mention it, but American law (or lawyers, more specifically) has had an impact on the dialogue surrounding international criminal law. Though the U.S. has not signed on to the I.C.C., it is noteworthy that the most recent head of an international tribunal (the Special Court for Sierra Leone) was headed up by an American, David Crane (now of the Syracuse University College Law School).

    Again, tangential but noteworthy.

  10. Melissa Waters says:

    Nate, I take your point (in your first comment to this post) that moderate viewpoints often lead to less-than-helpful heuristic devices that only serve to further complicate what are already complicated issues. But, stubborn moderate that I am, I refuse to concede the point entirely. In my view, we lawyers (and judges) ought to leave the Crossfire-style debate to the journalists and the politicians. It’s our job to keep reminding them of the many nuances and inherent complications behind the simplistic stories that they tell. The difficulty, of course, is doing so in a way that ensures that we don’t lose our voices in the debate entirely.

    But our “old dad” (Judge Buzz Arnold, for whom both Nate and I clerked) used to tease me that my motto in life was “Hell, maybe!” He was right, as always — and there is no issue out there that brings out my “hell, maybe” instincts more than the current debate over U.S. court participation in transnational judicial dialogue.

    Mike, your point re. the Justices taking this debate overseas and thus a bit more under the radar — perhaps because of press scrutiny here in the US — is a fascinating one.

  11. Melissa Waters says:

    Mike, just as noteworthy is the fact that some international tribunals have considered American criminal law precedents in developing the content of international criminal law on a range of issues. Again, more evidence that many foreign and international courts WANT to look to American norms in developing their own jurisprudence.

  12. Edward S. says:

    I appreciate Melissa’s response, but I still think the interesting thing would be if the “transational dialogue” led the U.S. to export its politically conservative laws like the death penalty. It’s too easy to talk about the sharing of liberal political views: the academic world naturally thinks that’s great, and will pick up whatever arguments support it. If the transnational dialgue helped export conservative views, I suspect many academics would reconsider. Or am I too cynical?

  13. David Zaring says:

    Let’s not forget – just to make things boring – that US regs – as opposed to opinions – are models not just for developing countries, but for developed ones as well. It’s completely possible that everyone will do accounting our way, and it’s already the case, probably, that the US has dominated the multinational effort to set capital reserve standards.

    But it’s less common for foreign courts to cite American courts for anything other than constitutional law and human rights, I admit.

  14. Simon says:

    Quick comment…

    the “persuasive, not binding” argument merely begs the question: Just how persuasive? How much weight is a court giving to a particular foreign source?

    I don’t think that’s even the most critical question being begged by the the “persuasive, not binding” argument. Isn’t the most obvious question: persuasive of what?

    What are we supposed to be pursuaded of? That foreign countries X, Y and Z have abolished the death penalty? That foreign countries A, B and C have banned abortion? That foreign countries D, E and F continue to use probate courts while countries L, M and N do not? Okay, say we’re pursuaded. Now what? I mean, you refer to Justice Breyer’s Knight dissent, and that’s a perfect example: Breyer makes claims on what Britain, Canada, India and Zimbabwe have done, but he commits a glaring non sequitur by failing to explain why we should care what courts in Britain, Canada, India and Zimbabwe have held. What are we supposed to be pursuaded of? That under the Constitutions and legal cultures of Britain, Canada, India and Zimbabwe a given punishment is not permissable? Surely a sensible person must reply: “So what?”

  15. Melissa Waters says:

    Edward, you make a good point, and one that deserves to be taken seriously. It is essentially another (important) variant on the “looking out over the crowd and picking out your friends” argument.

    Here’s one response: in an article that I published last year, I argued that the story of the worldwide abolition of the death penalty is very much the story of the successful export of European anti-death penalty norms to the rest of the world. Now, I admit that I happen to like the outcome of that particular transnational judicial dialogue (for the most part). But my point is that had U.S. courts been more active participants in the transnational judicial dialogue on the death penalty early in its development, the outcome of that debate worldwide might have been different — at a minimum, we might have had a more nuanced debate.

    Judge Richard Arnold of the Eighth Circuit in a decision several years ago provided an example of how courts might go about engaging in dialogue with their foreign counterparts on issues where there is disagreement. In a decision ruling on whether the “death row phenomenon” (the prolonged delay before carrying out a death sentence) amounted to cruel or unusual punishment — Judge Arnold cited and discussed the views of several foreign courts ruling that the death row phenomenon amounted to inhuman punishment. He said, in essence, “We should take into account the views of these courts as a matter of comity — i.e., out of the respect that we owe to our sister courts around the world. And yet, we have a different take on this issue. Here are the many reasons why this court does NOT believe that the death row phenomenon should be considered cruel and unusual punishment …” It was a well-reasoned, thoughtful decision — regardless of whether one agreed with his conclusions. My guess is that if that decision had come out of the U.S. Supreme Court, other courts around the world would have cited and discussed it in coming to their own conclusions on this issue. In other words, in ADDITION to precedent from the European Court of Human Rights condemning the practice, courts in Canada, Australia, South Africa, etc. would have had a well-reasoned decision from the Supreme Court espousing a different view.

  16. Nate Oman says:

    Melissa: The question of what one ought to do and who will end up dominating the discussions strike me as different questions. I actually think that moderate and nuanced discussions tend to produce the most light and knowledge. However, I have a niggling suspicion that nuance is parasitic on more simplisitic forms of discussions. I suspect that healthy intellectual discussion requires both iconoclasm and nuance.

  17. Edward S. says:


    Twop more questions, if you don’t mind:

    1) Are there any foreign legal regimes that you think are out of bounds for the purposes of having a “transnational judicial dialogue”?

    2) To what extent should judges factor in the interests of the litigants in such cases? If I were involved in a case and had might rights decided by a Court, I’m not sure I would appreciate the Court taking a few pages to engage in a conversation with foreign judges. Maybe I’m just a traditionalist, but I like the idea of judges deciding cases, not pretending they’re the Secretary of State.

  18. Ned Ulbricht says:

    It is, in a larger sense, a debate over what role U.S. courts will play in the emerging transnational judicial dialogue among the world’s courts on a whole range of legal issues.

    Which brings up a constitutional question…

    What deference is owed to the executive branch’s conduct of foreign affairs by a sovereign and coequal judicial branch? If the justices, in a real sense, speak for the nation in this transnational dialogue, then should they consult with the President? The Secretary of State? The Senate? Or should the Supreme Court exercise its own sovereign power to negotiate with foreign magistrates?

  19. Mike S. says:

    Edward S.-

    Not to intercept your question to Melissa, but I would imagine that two possible answers to your first question might be the Sharia courts of the Islamic world AND the Gacaca courts of Rwanda. The former relies on a jurisprudence that would, arguably, violate the separation of church and state, while the latter contravenes not only the 5th Amendment, but also the separate jobs of judge and jury are automatically contravened. … Those these are perhaps extreme contra-Western judicial systems, they are (one could argue) workable foreign legal alternatives to our own system.

    Can a dialogue exist between them? Yes.

    But because they rely on such fundamentally different assumptions and underpinnings, there are strict (insurmountable, I would argue) limits to how much an exchange of ideas could impact any one system, especially any legal system so well established as that in the United States.

    ps- Melissa: My interest in press scrutiny of the courts comes from my former role as a SCOTUS reporter. Though I think press scrutiny of the government — including the courts — is important, it alarms me that we might have, in essense, forced our sources abroad and into secrecy.

  20. Edward S. says:

    Mike S.,

    I don’t understand your answer. If differences between our legal system and a foreign legal system rule out dialogue, then there is no point in dialogue, right? Maybe Sharia courts of the Islamic world will teach us something about the separation of church and state. We have much to learn from those abroad; through transnational judicial dialogue, we can learn so much about alternate ways of positioning the relationship between church and state.

    Of course, my tongue is planted firmly in cheek: My point is that people mostly want “dialogue” with countries as a way of exporting laws that they like and getting rid of laws that they don’t like. It’s all about substantive preference, I think, albeit substantive dressed up as theoretical commitments.

  21. Melissa Waters says:


    Your second point is an interesting one: To what extent should judges take a few pages out of an opinion to engage in dialogue with foreign courts, when all I as a litigant want is a RULING from the court? Will this secondary focus on dialogue detract from what should be the primary focus of courts — deciding the dispute that is before them?

    My judge, an Eighth Circuit Court of Appeals judge, used to remind us, “We’re not writing for the ages here, we’re writing for the parties before us.” Point taken. But does the same hold true for U.S. Supreme Court decisions? Aren’t they, at least “writing for the ages” as much as (if not more than) they’re writing for the parties before them?

    Perhaps participation in transnational judicial dialogue should be primarily the province of the U.S. Supreme Court, while lower courts (and state courts?) should be more cautious in citing foreign and international law. Or does it make more sense to somehow have multiple courts acting as “mediators” between domestic and international law?

  22. Melissa Waters says:

    Edward, I don’t really have an answer to your first question: Which foreign courts are “out of bounds” for dialogue? I can think of a couple of factors that courts ought to take into account in determining the legitimacy of a foreign judicial decision — e.g., is the foreign court independent and impartial, is the foreign legal regime a democratic or autocratic one? But I recognize that this opens up a whole can of worms — e.g., are U.S. courts really well-suited to make these sorts of determinations? (Perhaps … Keep in mind that they make similar sorts of determinations in ruling on forum non conveniens issues, and in deciding whether to recognize a foreign court’s judgment.) But are the benefits of reliance on a particular foreign source worth the time and energy expended to make these determinations regarding the legitimacy of that source?

    I don’t think anyone has the answers to these questions at this point — but that doesn’t mean that there ARE no answers. The debate is in its early stages — and I still think that it’s possible for courts to develop a principled, rigorous analytical approach to incorporating foreign and international law into judicial decisionmaking. The first step is to figure out what questions need answering — and you’ve hit on an important one.

  23. MJ says:

    Really great, thoughtful, and serious post, Melissa — exactly what I come to the blogosphere looking for.

    A couple of points:

    Judge Arnold says that we should take into account the views of courts of other countries as a matter of comity. Why? Not only is it fraught with serious questions (Whose views? On which subjects?), and the possibility of abuse (ignoring views that don’t coincide with a particular judge or justice’s personal sensibilities, selecting only views that get a judge or justice to a particular outcome they desire) but isn’t looking to what other sovereignties have done an antithesis of the concept of sovereignty – at least when done by non-elected officials? Shouldn’t the views of other sovereignties be the FIRST persuasive authority that a court interpreting our founding document takes OFF of the table?

    For each similarity between either the people or the government of any country and ours, ten (oftentimes fundamental) differences can be demonstrated. I have yet to hear any person offer (and cannot imagine) a workable standard by which there could ever be any consistency in how a court could use foreign law to inform its judgments about our constitution.

    Don’t the dangers here – more politicization of judicial opinions, less predictability in future results, more confusion concerning the proper legal analysis, very real feelings about the illegitimacy of the use of foreign law – far, far, outweigh any possible benefits?

    And, exactly what are the possible benefits of a court doing this vs. leaving such matters to the two elected branches of government?

  24. DRMPro says:

    According to Justice Ginsburg, someone in a Web site chat room wrote: “Okay commandoes, here is your first patriotic assignment … an easy one. Supreme Court Justices Ginsburg and O’Connor have publicly stated that they use (foreign) laws and rulings to decide how to rule on American cases. This is a huge threat to our Republic and Constitutional freedom. … If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.”




  25. CALIAS says:

    On the other hand, lots and lots of countries have been setting up powerful constitutional courts and have increasingly adopted robust notions of judicial review.

    This is fallacious. It is rather arrogant to presume that robust judicial review is a result of America exporting its values. It is likelier the case that nations use the judiciary to bring them up to speed — i.e., create and modernize their state infrastructure — because it is very efficient, i.e., responsive to elite opinion without needing to be democratic.

    As for importing foreign law, in a forum non conveniens case the foreign law would resolve the subject of the dispute, i.e., it is binding; the argument we are having is about non-binding uses of foreign law, and the reason people think citing to it is outrageous is because either it is irrelevant surplusage or it is the use of irrelevant law as controlling law, which is just plain wrong.

  26. Marlon Zakeyo says:


    I am a Zimbabwean lawyer who is fully aware that my country is not the ‘human rights capital of the world’ but do nonetheless disagree with the dismissive manner in which you use my country to advance your argument. A short study of the political history of Zimbabwe and the evolution of its legal system will show you that our Supreme Court, up until 2001 was composed of some of Africa’s and the world’s most reputable jurists, such as award-winning Chief Justice Gubbay and sitting Justice Wilson Sandura. Am sure we all know that there is a clear separation, or at least there should be, between the Judiciary and the Executive. The human rights ‘sins’ of the Robert Mugabe’s government must not therefore be visited upon clearly conscietious members of the judiciary and legal community, who are trying to deliver quality justice in adverse circumstances.

    Our judges do qoute decisions made by US judges without being bothered by the human rights ‘sins’ of the US Executive arm! There is a lot going beyond Europe and the US in terms of legal development….lets share experiences in mutual respect…we will be surprised how far we can go.