Foreign case-law in national judicial decisions from a comparative law perspective

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Assignment Western Legal Culture

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Today, national courts increasingly refer to the case law of foreign courts. This practice of so-called cross-citation has sparked a fierce debate in the U.S. Supreme Court and in scholarship. While some courts support the use of foreign judgments and their citation in decisions of the U.S. Supreme Court, others strongly refuse is. For example, in the case Lawrence et al. v Texas, Justice Kennedy referred in the majority opinion to English law and the case law of the European Court of Human Rights. This was strongly criticized by Justice Scalia, who argued in his dissenting opinion that the U.S. Supreme Court ‘should not impose foreign moods, fads or fashions on Americans’. In a published article, Justice Scalia furthermore argued when discussing the citation of foreign case-law that. ‘[w]e judges of the American democracies are servants of our peoples sworn to apply […] the laws that those peoples deem appropriate. We are not some international priesthood empowered to impose upon our free and independent citizen supra-national values that contradict their own’ (A. Scalia, Commentary, 40 Saint Louis University Law Journal 1996, 1119, 1122. In a similar direction, Young argued that: ‘[I]mporting foreign law into the domestic legal system through constitutional interpretation circumvents the institutional mechanism by which the political branches ordinarily control the interaction between the domestic and the foreign’ E. Young, ‘Foreign Law and the Denominator Problem’ (2005) 119 Harvard Law Review 148, 163). On the other side of the debate, we find, for example, Justice Sandra Day O’Connor, who has argued that ‘conclusions reached by other countries and by the international community should at times constitute persuasive authority in American courts’. Similarly, Justice Ginsburg of the US Supreme Court has explained that, in her view, ‘comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights. We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups. For irrational prejudice and rank discrimination are infectious in our world.

Question: What are the arguments in favors and against the use of foreign case-law in national judicial decisions from a comparative law perspective? Discuss whether national judges should cite foreign judicial decisions or not.”

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