National self-sufficiency or intellectual arrogance? the current attitude of american courts towards foreign law

Cambridge Law Journal

Volumn 65, Issue 2, 2006, Pages 301-329

  Markesinis, Sir Basil ^a  

^a NONE

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EID: 43249170524     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197306007136     Document Type: Article

References (63)

1. For instance Rylands v. Fletcher (1865) 3 H & C 774, 159 E.R. 737
2. reversed in Fletcher v. Rylands (1866) L.R. 1 Ex. 265
3. affirmed in Rylands v. Fletcher (1868) L.R. 3 H.L. 330, a decision establishing a general rule of strict liability for the accumulation of any substance on the defendant's land likely to do mischief if it escaped. In the case in question, the substance accumulated was water (to assist a local milling industry), which is escaped through some disused mine shafts and flooded the low-lying land of the plaintiff. In states like Texas, where water was and is a scarce commodity and its accumulation should be encouraged and not penalised, the Texas courts refused to follow the English ruling.
4. See, for instance, Turner v. Big Lake Oil Co. 96 S.W. 2d 221 (1936), and
5. Leon Green, “Tort Law Public Law in Disguise” 3 (1959) 38
6. Texas L. Rev. 1, 5.
7. For instance, Rowland v. Christian 69 Cal. 2d 198, 443 P. 2d 561 (1968).
8. As it did in France after the Franco Prussian war of 1870. For more details on this see Claude Digeon, La Crise Allemande de la Pensée Francpaise, 1870–1914 (Paris 1959), esp. pp. 364 ff. and, more generally
9. Philippe Jestaz and Christophe Jamin, La Doctrine (Paris 2004), passim.
10. For an excellent collection of essays see Mathias Reimann (ed.), The Reception of Continental Ideas in the Common Law World 1820–1920 (Berlin 1993).
11. Justice Scalia makes the point with great clarity in A Matter of Interpretation: Federal Courts and the Law (Princeton 1997).
12. Among the rich literature see Anthony (now Lord) Lester “The Overseas Trade in the American Bill of Rights” (1988) 88 Columb. L. Rev. 537.
13. Earl Warren was appointed by President Eisenhower and held office between 1953 and 1969, Warren E. Burger was appointed by President Nixon and was at the Supreme Court between 1969 and 1986. For some of the early reactions see A.M. Bickel, Politics and the Warren Court (New York 1965) and
14. P.B. Kurland, Politics, the Constitution and the Warren Court (Chicago 12 1970).
15. “The Wages of Crying Wolf: A Comment on Roe v. Wade” (1973) 82 Yale L.J. 920.
16. The Tempting of America: The Political Seduction of the Law (New York 1990); and, more recently
17. Coercing Virtue: The Worldwide Rule of Judges (Washington, D.C. 2003), an intemperately phrased exposition of the views of the American Right. The “originalist” view has by no means gained acceptance by judges, either of liberal or pro-minority hues or even the Right.
18. For an example of the first see Thurgood Marshall “Reflections on the Bicentennial of the United States Constitution”. (1980) 101 Harvard L. Rev. 1
19. and for the second see Richard Posner, “What am I, a Potted Plant? The Case Against Strict Constructionism” (1987) 197 The New Republic, 23 ff For thoughtful academic reactions see the replies to Justice Scalia's A Matter of Interpretation (next footnote).
20. Justice Scalia's views can be found in his many judgments but have also been expounded in summary form in his following writings: A Matter of Interpretation: Federal Courts and the Law (Princeton 1997)
21. “The Rule of Law as a Law of Rules” (1989) 56 U. Chi. L. Rev. 1175
22. and “Originalism: The Lesser Evil”, (1989) 57 U. Cin. L. Rev. 849.
23. Some of his underlying theories also come through in “Assorted Canards of Contemporary Legal Analysis” (1990) 40 Case W. Res. L. Rev. 581.
24. Larry D. Kramer, “The Supreme Court 2000 Term Foreword: We the Court', (2001) 115 Harv. L. Rev. 4, 130 In similar terms
25. Sarah K. Harding “Comparative Reasoning and Judicial Review”, (2003) 28 Yale J. Int'l L. 409, 449–50.
26. See, for instance, the criticisms of Lord Cooke in “An Impossible Distinction” (1991) 107 L.Q.R. 46, 57 ff.
27. Markesinis, Comparative Law in the Courtroom and the Classroom. The Story of the Last Thirty Five Years (Oxford 2003).
28. Though this has, occasionally, allowed him to attempt some fairly bold interpretations of the original understanding of the draftsmen. See, for instance, Kyllo v. United States 533 US 27 (2001): a thermal control device, checking from the outside premises to detect whether cannabis is grown within, can be treated as violating the unlawful search and seizure clause of the 4th Amendment.
29. 125 S. Ct. 1183, 1217ff.
30. The Nature of the Judicial Process (New Haven 1921), p. 124.
31. Roper v. Simmons, 125 S. Ct. 1183, 1199.
32. 521 US 898, 977 (1997).
33. 125 S. Ct. 1183, 1215 (2005). This citation is important. For, though the way foreign law was presented to the court and used by it may leave much to be desired, it does show that five out nine judges were, in principle not opposed to the idea of looking at foreign law.
34. 536 US 304, 316 note 21 (2002).
35. Articles 1 and 2, discussed in detail (in English) in Markesinis and Unberath, The German Law of Torts: A Comparative Introduction, 4th ed. (Oxford 2002), pp. 392 ff and 412 ff.
36. “Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-called international community take centre stage”. (per Justice Scalia, at p. 1225).
37. Trop v. Dulles 356 US 86, 102–3, 78 S.Ct. 590 (plurality opinion).
38. Plus one State Supreme Court had construed the State's death penalty statute not to apply to the under-18 offenders: State v. Furman, 122 Wash. 2d 440, 458, 858 P.2d 1092, 1103 (1993).
39. [2002] 1 A.C. 32.
40. This is attempted in great detail by Basil Markesinis and Jorg Fedtke in “The Judge as Comparatist”, the 2005 Eason-Weinmann Lecture, (2005) 81 Tulane L. Rev. 11.
41. Pratt v. Attorney General for Jamaica [1994] 2 A.C. 1.
42. Reyes v. The Queen [2002] 2 A.C. 235.
43. Charles Matthew v. The State [2005] A.C. 433.
44. This obvious when comparing carefully Justice Scalia's judgment in Roper v. Simmons 125 S. Ct. 1183 with those of Justice Kennedy and Justice O'Connor.
45. Das System des heutigen Rümischen Rechts, vol. I, s. 33 (Berlin 1840), especially at 213–4.
46. The literature is vast so I draw the reader's attention to two classic works: Konrad Hesse, Grundzuge des Verfassungsrechts der Bundesrepublik Deutschland s. 2 II 1, 16th ed. (Karlsruhe 1988)
47. Winfried Brugger, Rundfunkfreiheit und Verfassungsinterpretation (Heidelberg 1991).
48. Winfried Brugger “Legal Interpretation, Schools of Jurisprudence, and Anthropology: Some Remarks from a German Point of View” (1994) 42 Amer. J. Comp. L. 395 and 398.
49. Though one can forget sometimes that similar thoughts have also been expressed by American courts in the past (for instance, Weems v. United States 317, 349 (1910)) and powerfully supported by Supreme Court justices even in our times. Thus, see William Brennan Jr. “The Constitution of the United States. Contemporary Ratification”, reprinted in David M. O'Brien, Judges on Judging: Views from the Bench (Washington, DC 2004), p. 183.
50. In passing, however, one could refer to the prolonged dispute in the USA some fifteen years ago as to whether the American law of civil procedure could be made more efficient by adopting managerial type characteristics found in other systems such as the German. On this see: Ronald J. Allen, Stephan Kock, Kurt Reichenberg and D. Toby Rosen, “The German Advantage in Civil Procedure: A Plea for More details and Fewer Generalities in Comparative Scholarship”, (1988) 82 NW U. L. Rev. 705 to which Professor Langbein replied
51. “The German Advantage”, (1988) 82 NW U. L. Rev. 763.
52. Allen's riposte, entitled “Idealisation and Caricature in Comparative Scholarship”, appeared in (1988) 82 NW U. L. Rev. 785.
53. Others joined the fray. Thus, see John H. Merryman, “How Others Do It: The French and German Judiciaries”, (1988) 61 So. Cal. L. Rev. 1865 and
54. John C. Reitz, “Why We Probably Cannot Adopt the German Advantage in Civil Procedure”, (1990) 75 Iowa L. Rev. 987. The articles mentioned in the next note show that the discussion is not abating but, on the contrary, it is now acquiring a new, sociological dimension.
55. See “An equal-rights decision that flies in the face of some beliefs”, Jerusalem Post of 12 December 1994 at p. 7, and the 1 December issue of the same publication at p. 2. For a further discussion of the use of foreign law by Israel's Supreme Court
56. see Z. Segal, “The Israeli Constitutional Revolution: The Canadian Impact in the Midst of a Formative Period”, (1997) 8:3 Forum Constitutionnel, and
57. A. Dodek, “The Charter. in the Holy Land?”, (1996) 8:1 Forum Constitutionnel.
58. “On Uses and Misuses of Comparative Law” (1974) 37 M.L.R. 1, 15.
59. Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582.
60. “Looking Abroad When Interpreting the US Constitution; Some Reflections” (2004) 39 Texas Int. L. J. 353, 363–364.
61. [2005] UKHL 23.
62. “If [the child/claimant] can make good her complaints (a vital condition, which I forebear constantly to repeat), it would require very potent considerations of public policy, to override the rule of public policy which has first claim on the loyalty of the law: that wrongs should be remedied”. M. v. Newham London Borough Council and X v. Bedfordshire County Council [1995] 2 A.C. 633, at 663. A German case with very similar facts (BGH NJW 2005, 68) had no doubt that in this case liability would be imposed.
63. Fairchild v. Glenhaven Funeral Services [2003] 1 A.C. 33.