On Learning from Nest-Seeking Honeybees and House-Hunting Ants: Collective Decision-Making and its Implications for a Condercetian Normative Theory of Foreign Law Application in U.S. Courts
31 Pages Posted: 19 Nov 2009
Date Written: November 15, 2009
This article presents a critique of Eric Posner’s and Cass Sunstein’s claim that Condorcet’s Jury Theorem provides a normative framework for the application of foreign law in U.S. courts. Through an examination of several biological studies testing the implications of the jury theorem in situations of consensus decisionmaking, I conclude that there are threshold, decisional, and perspectival flaws in the use of Condorcet in this context. The Jury Theorem does not provide a rationale or justification for the invocation of foreign law in any given case nor does it explain recourse to foreign law in one case but forbearance on such reliance in another. The Jury Theorem cannot adequately account for the necessary independence in the U.S. adjudicator during the decisionmaking process and thus cannot provide any touchstone basis on which or by which foreign law can be applied in U.S. courts. Finally, the schematic used by Posner and Sunstein fails to account for the fact that in many cases the U.S. will have already registered the relevant “vote” regarding the subject legal dispute. That being the case, the Jury Theorem presents no compelling argument as to why the U.S. should be made to change its vote simply because that vote places it in the minority of states. Thus, Condorcet does not provide an adequate or sufficient normative framework by which to govern the application of foreign law in U.S. courts.
Keywords: Supreme Court, constitutional law, foreign law, international law, Condorcet, Posner, Sunstein, Rosenkranz
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