Legal Commentary

Adam Liptak has a reasonably interesting story up on the Times web site on what he describes as the waning global influence of American judicial law:

Even as a debate continues in the court over whether its decisions should ever cite foreign law, a diminishing number of foreign courts seem to pay attention to the writings of American justices.

?One of our great exports used to be constitutional law,? said Anne-Marie Slaughter, the dean of the Woodrow Wilson School of Public and International Affairs at Princeton. ?We are losing one of the greatest bully pulpits we have ever had.?

It's a reasonably interesting piece -- not incredibly interesting, because it covers what readers here should recognize as well-trodden ground, but a good introduction to the discussion.  I'll mostly let it speak for itself.  Just a couple of observations:

1) Contrary to what comparativist Thomas Ginsburg says in Liptak's article, the decline in foreign citations of American judicial decisions is likely not a result of American foreign policy.  It has more to do with the relative uselessness of modern American jurisprudence as a source of borrowing, either because its originalist method renders it of little value to foreign courts, or because American constitutional doctrine has reached a level of complexity, detail, and recursiveness that doesn't lend itself well to borrowing. Compare the broad-stroke statements and grand pronouncements of some foundational Warren Court decisions -- Holmes's dissent in Abrams, or Brennan's opinion in New York Times v. Sullivan, say -- with the highly reticulated material of modern First Amendment decisions.  The earlier decisions have a broad pedagogical quality that is not present in today's fully developed (or, um, obscurantist and incoherent -- take your pick) doctrinal decisions.  The former is easy to borrow from, especially when a country's constitutional court is just getting started and needs some basic principles; the latter is not.  It's the difference between quoting a short and sharp political sermon versus trying to extract a useful quote from a set of stereo instructions. It's not that they hate us; it's that we have become too bewildering to borrow from.

2) Liptak notes, but I think it bears even greater emphasis, that the decline in foreign citation of American decisions is a natural outgrowth of the maturation of foreign constitutional courts.  This is true in two senses.  First, as these courts mature, they will have a larger body of home-grown doctrine to draw on, and if they are common-law-type courts they will be obliged to draw on it; American citations are naturally going to fall by the wayside.  Second, as they mature they will be more willing to assert themselves and more sensitive to the embarrassing (if you view it that way) need to rely on the Americans for advice.  This is both an assertion of independence and, in another sense, a classic exhibition of Bloom's "anxiety of influence."  I dare say that if some foreign courts were truly "mature," they would not let this anxiety deter them from citing useful American decisions, if any are left.  (This is not to say that American courts are therefore immature when they refuse to cite foreign cases. There is a compelling argument that this is true, but there are also well-developed arguments for why American courts shouldn't cite foreign law, especially if one adopts particular interpretive theories of the Constitution.  I'm not taking sides here.)  But to take an adult's role, one often feels the need to confront and/or kill the parent; hence, the decline in citations to American courts.  (I should note self-promotionally that I discuss some of the issues covered in the last two paragraphs above in this article.)

3) One factor Liptak does not consider is that, as foreign constitutional systems mature, the apparatus surrounding them will mature as well.  The growth in domestic constitutional law is likely to be accompanied by a growth in home-grown scholarship and the resources that surround it: schools, professors, journals, conferences, etc. There was a time, early in the history of the Canadian Charter of Rights, when all the soon-to-be Canadian constitutional law profs flew away to do graduate-level work at American law schools; naturally, if and when they came back, they cited a lot of American law and scholarship, and this reflected itself in the product of the Canadian legal journals and courts.  Now plenty of Canadian legal graduate students do quite sophisticated work, with largely domestic materials, in Canada.  Of course they are familiar with the American literature, but the influence of and need to cite American law and scholarship surely has decreased.  The growth of foreign constitutional courts may, in short, be accompanied by a growth in domestic scholarly resources and materials that reduce the imperative of drawing on American material.  They have gained control over their own means of production!

4) Note that Liptak is considering only the citation of American judicial opinions.  There are lots of other ways in which American law -- particularly statutory law, uniform legal codes, and the products of groups like the ALI -- can influence foreign courts and legal systems. On the other hand, I grant you that an article on the waning or waxing foreign influence of the UCC is unlikely to hit the front pages of the Times.  (More's the pity.)

5) Finally, two notes.  I am uncomfortable with Anne-Marie Slaughter's view that we are losing "one of the greatest bully pulpits we have ever had."  I suppose it is consistent with writing like that of Mary Dudziak, who has written usefully about the foreign policy underpinnings and foreign influence of the desegregation decisions. But even if American constitutional decisions can speak indirectly to foreign legal audiences, their primary purpose is to resolve actual questions of the interpretation of our Constitution as it applies to us.  (Well, you; I'm still Canadian and could be kicked out for spitting on the sidewalk.  But I am a permanent resident and American constitutionalist.)  It's not to deliver lectures to far-flung audiences.  Would you rather that the Court speak to the world on questions of racial justice, or to schoolchildren in Topeka?  Do you really want Anthony Kennedy to be an arm of American foreign policy?  I know he fancies himself this way at times, but, ugh. 

Conversely, Charles Fried's quote in the article, that the world has witnessed "an enormous coup d'etat on the part of judiciaries everywhere -- the European Court of Human Rights, Canada, South Africa, Israel" -- is a cheap shot.  First, if he thinks American courts should mostly mind their own business, then he should mind his.  Second, if, as he suggests in the article, drawing on foreign courts is a complicated business, then what business has he delivering such a blanket accusation?  More broadly, it is just not fair and accurate.  I am no great fan of much of the current approach of the Canadian and Israeli high courts; I think they have overreached, and that their justifications for doing so are unpersuasive in whole or part.  But they are embedded in their own domestic systems, they operate with a good deal of local social consensus, and their counterparts elsewhere in government have plenty of formal and informal mechanisms for resisting the courts' encroachment.  We can criticize these courts, and should; but to say that they have engaged in a "coup d'etat" is a rhetorical flourish that obscures more than it reveals.  Some folks still don't like Marbury; that didn't make it a putsch, for heaven's sake.  (I've written about this too, by the way.)   

Back to your regularly scheduled programming.  I hope to blog more when I'm finished with a couple of current projects.