Unplugged Mike

International Law Weekend 2004

Tonight, tomorrow, and Saturday afternoon, I will be attending the International Law Association's International Law Weekend at the New York City Bar Association.

The topics are scintillating. The opening session is entitled, "Using International Law to Interpret the Constitution". The court has, of late, been citing the decisions of foreign and international courts in its opinions. A particularly controversial example came in the case of Lawrence v. Texas, which overruled Texas's sodomy law, effectively destroying the final vestiges of laws against homosexuality. The case overturned Bowers v. Hardwick, the 1986 case which had upheld a similar law in Georgia. In the opinion, Justice Kennedy cited both British decisions, and (this made the originalists, like Justice Scalia, real mad), cited a decision of the European Court of Human Rights.

The two sides of the issue go something like this: those who favor the practice hold that a good court will look to all sources of law to craft an opinion that is well-reasoned and well-founded just as a good student uses as many relevant sources as possible to write a research paper. The superior courts of many countries, Israel in particular, cite foreign courts in their opinions. The originalists argue that to cite international or foreign courts (as opposed to treaties properly ratified by the U.S. Senate) is blasphemous activism, the validation of a body of law that was not made by any democratic process in the United States. Robert Bork, is, predictably, especially critical of the practice of citing international laws and decisions.

I'll have more to say about the conference in the next few days.

posted by Michael Brenner @ 5:14 PM