Legal Commentary

As the NY Times notes, the United States is an outlier when it comes to free speech. As I noted in an earlier post, we Yanks are weirdly out of step with most of the world on birthright citizenship (i.e., we have it, and most of other industrialized democracies don't). Of course, we are out of step with many European democracies on the exclusionary rule, administrative law (e.g., government in the sunshine, freedom-of-information, and other devices for lay participation in bureaucratic decision-making), class actions, civil jury trials, contingent fees, widespread use of plebiscites in local and state policy-making, and a host of other legal practices.

When a nation is such an oddball on so many issues, differing from other countries with a similar economic and democratic culture, then it is time to step back and take stock. Why are we such legal outliers?

One possibility is suggested by John Kingdon in his book, America the Unusual. Kingdon, a noted political scientist famous for his studies of the actual motives and incentives of members of Congress, provides a panoramic survey of U.S. political and legal culture, concluding that the citizenry of the United States is deeply anti-statist. This anti-statism springs, in turn, from an anti-elitism that European democracies do not share -- a distrust of the sorts of unelected policy-making experts that staff the permanent bureaucracy. Thus, American anti-statism is not necessarily libertarian hostility to redistribution of wealth: Americans are comfortable, for instance, with a tort system that is far more redistributive than European tort systems. Rather, the American attitude is that full-time bureaucratic specialists cannot be trusted with power.

Suppose that Kingdon is correct as a purely descriptive matter (and, by the way, Kingdon's position is not normative: He deplores Americans' knee-jerk anti-statism). If one is committed to a sort of Dworkinian theory of legal integrity in which particular legal decisions are integrated to "fit" as well as possible with pre-existing conventions, then does the desire to achieve such "fit" suggest that we weird Americans really ought to be suspicious of foreign law? There is, after all, a high probability that such law will be in tension with our long-held and widespread legal commitments to Kingdon-style anti-statism.

In other words, should Ronald Dworkin dislike foreign law just as much as Justice Scalia?