Abstract

http://ssrn.com/abstract=891269
 
 

Citations (4)



 
 

Footnotes (309)



 


 



Storm in a Teacup: the U.S. Supreme Court's Use of Foreign Law


Austen Parrish


Indiana Univerity Maurer School of Law

February 13, 2007


Abstract:     
In this Article, Professor Parrish explores the legitimacy of the U.S. Supreme Court's use of foreign law in constitutional adjudication. In recent years, the U.S. Supreme Court has used foreign law as persuasive authority in a number of highly contentious cases. The backlash has been spirited, with calls for foreign law to be categorically barred from constitutional adjudication, and even for Justices to be impeached if they cite to foreign sources. Last year, the condemnation of comparative constitutionalism reached a high note, as a barrage of scholarship decried the practice as illegitimate and a threat to our national sovereignty. The result has been a change to the debate's tenor. Instead of exploring how to use foreign materials in a sophisticated, refined manner, the debate has been reduced to an overly simplistic one of all or nothing.

This Article is the first to systematically address the recent condemnation of the U.S. Supreme Court's use of foreign law as persuasive authority. After explaining how the debate has unfolded, the Article critiques the arguments recently made by those who oppose the use of foreign law. The Article reveals how those arguments are misplaced, at times extreme, and inconsistent with a long history of American jurisprudence. In particular, the Article explains how comparative constitutionalism is a hallmark of our state court system. The Article then explains how the use of foreign law is not only sensible, but compatible with American constitutionalism and the proper role of the judiciary. Professor Parrish concludes that the judiciary's use of foreign law as persuasive authority is largely commendable, not illegitimate. The recent attacks against the use of foreign law are spurred on by rhetoric not substance: a storm in a teacup.

Number of Pages in PDF File: 44

Keywords: citation, foreign, foreign law, constitutionalism, comparativism, comparative, exceptionalism, candor, originalism, scalia, breyer, dialogic, dialogue, state constitutionalism, roper, grutter, lawrence, sovereignty, provincialist, provincialism, parochialism, Supreme Court, judicial, transnational

JEL Classification: K10, K19, K33, K39, K40, K49

working papers series





Download This Paper

Date posted: March 23, 2006  

Suggested Citation

Parrish, Austen, Storm in a Teacup: the U.S. Supreme Court's Use of Foreign Law (February 13, 2007). Available at SSRN: http://ssrn.com/abstract=891269 or http://dx.doi.org/10.2139/ssrn.891269

Contact Information

Austen L. Parrish (Contact Author)
Indiana Univerity Maurer School of Law ( email )
211 S. Indiana Avenue
Bloomington, IN 47405
United States
HOME PAGE: http://www.law.indiana.edu/
Feedback to SSRN


Paper statistics
Abstract Views: 1,911
Downloads: 411
Download Rank: 40,206
Citations:  4
Footnotes:  309

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo4 in 0.360 seconds