Through Our Glass Darkly: Does Comparative Law Counsel the Use of Foreign Law in U.S. Constitutional Adjudication?

36 Pages Posted: 23 Jun 2014 Last revised: 23 Sep 2014

See all articles by Kenneth Anderson

Kenneth Anderson

American University - Washington College of Law

Date Written: January 14, 2014

Abstract

This (35 pp.) essay appears as a contribution to a law review symposium on the work of Harvard Law School professor Mary Ann Glendon in comparative law. The essay begins by asking what comparative law as a scholarly discipline might suggest about the use of foreign (or unratified or nationally "unaccepted" international law) by US courts in US constitutional adjudication. The trend seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period.

Practical politics within the US have a lot to do with this, of course. But other reasons, rooted in global politics, are perhaps now starting to be reflected in the US Supreme Court's jurisprudence regarding a body of otherwise doctrinally quite distinct legal topics -- the Alien Tort Statute, jurisdiction by US courts over acts and actors taking place outside US territory, among others, as well as the de facto trend away from foreign citation in constitutional cases. It has been widely noticed that the US Supreme Court has taken steps in these areas mostly to pull back, constrain, and condition the extraterritorial reach of US courts, at least in the absence of clear legislative direction. The occasional use of foreign law by US courts in constitutional adjudication represented the flip side of the reach to universalism that the Court now appears be reining in -- it represented judicial cosmopolitanism, the embrace of gradual, slow convergence of global judicial views on certain core "values" questions, a cosmopolitanism evidenced by drawing into the US constitutional "conversation" the views of foreign courts, understood to be a legitimate source of expertise, if not precisely legal authority, through the global fraternity of national high courts.

The trend today in the US Supreme Court to pull back in all these areas might be partly explained as reflecting a political perception by the US Supreme Court that the real world has taken a turn quite distinct from what things appeared to be in the heady, post-Cold War 1990s. The ideal of global governance through liberal internationalism -- defined as international law and institutions overcoming the anarchy of sovereign states -- that characterized the 1990s has given way to a world of new, rising great powers, jostling with one another, jealous of sovereign prerogatives, and nipping at the heels of the global hegemon, the United States, which, in any case, today is often understood as a hegemon in decline. An ATS lawsuit against a Chinese corporation for conduct in Africa unrelated to US territory or US nationals seems like a different political proposition today than it might have in 1995.

Moves by the US Supreme Court to constrain Alien Tort Statute jurisprudence, shift away from broad claims of universal jurisdiction and toward insistence on other, traditional bases of cross border jurisdiction, and seemingly to give up -- without, of course, saying so directly -- contentious citation of foreign courts in constitutional adjudication of core values issues might best be explained by the Court's perception of a long-run shift in global politics. A shift, that is, away from global governance through liberal internationalism; away from American hegemony making claims of universalism; and toward competitive, newly-rising sovereign powers in a world that looks more, rather than less, Westphalian. Despite important "internal" doctrinal differences between positions taken by members of today's US Supreme Court, an "external" political explanation perhaps accounts in important ways for the seemingly shared agreement among the Justices that the Court's jurisprudence ought to shift away from broad assertions of the "universal" to more modest assertions of the merely "extraterritorial."

Keywords: Glendon, Mary Ann Glendon, comparative law, constitutional law, comparative constitutional law, foreign law in US constitutional adjudication, Alien Tort Statute, ATS, Kiobel, Anne-Marie Slaughter, Bauman, jurisdiction, universal jurisdiction, human rights, sovereignty, legitimacy, hegemony

JEL Classification: K00, K33

Suggested Citation

Anderson, Kenneth, Through Our Glass Darkly: Does Comparative Law Counsel the Use of Foreign Law in U.S. Constitutional Adjudication? (January 14, 2014). Duquesne University Law Review, Vol. 52, Winter 2014, pp. 115-149; American University, WCL Research Paper No. 2014-35. Available at SSRN: https://ssrn.com/abstract=2457490

Kenneth Anderson (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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