Making Strange Laws

Abstract

The central argument of this Article is that conflict over the judicial practice to use foreign authority leads to the manufacture of foreign law into a dangerous stranger. Drawing on philosopher and sociologist Georg Simmel’s conceptualization of the stranger as a cultural object that sits on the border of the insider and outsider, I argue that there is a resistance to the use of foreign law in the United States. Foreign laws, like immigrants in the United States, are being constructed as tolerable illegals or threatening legals.

I perform an empirical qualitative content analysis of the senate confirmation hearings for Supreme Court nominees and their discussions of the practice of judicial citation of foreign law. The hearings of nominees Alito, Kagan, O’Connor, Roberts, and Sotomayor are studied. During these hearings, conservatives label foreign law as biased and dangerous. Most interestingly, however, are the ways in which foreign law emerges from these debates linked to otherness — particularly the otherness of disadvantaged gender and racial minorities. The Article connects the transformation of foreign law into a stranger to other conservative movements that have constructed foreign national immigrants as illegal strangers who should be feared. This work argues that foreign laws and decisions constitute a new American stranger.

Keywords: foreign law, stranger, transjudicial communication, citation, foreign courts