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Danger from Foreign Legal Precedent
Washington Times ^ | 3/25/03 | Times Editors

Posted on 03/25/2004 6:37:01 AM PST by DoctorMichael

Edited on 07/12/2004 3:41:32 PM PDT by Jim Robinson. [history]

Supreme Court Justice Sandra Day O'Connor drew national attention to a developing judicial trend in October when she addressed the Southern Center for International Studies in Atlanta: "I suspect that over time we will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues."

(Excerpt) Read more at ...

TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Government; News/Current Events
KEYWORDS: globalization; law; lawrencevtexas; oconnor; sandra; scotus; supremecourt

1 posted on 03/25/2004 6:37:01 AM PST by DoctorMichael
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To: DoctorMichael
I hope this passes.
2 posted on 03/25/2004 6:38:28 AM PST by Unam Sanctam
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To: Unam Sanctam
When I read Sandra's original comments and heard them repeated here at FR, I was quite disturbed over her reasoning. To have a US Supreme Court Justice fail to seek precedents in US law, or consider the principles in the US Constitution, to make a decision is pretty scary.

This would hopefully at least set a clear precedent.....IF they can get it passed clowns like Teddy, Leahey et al.

3 posted on 03/25/2004 6:45:44 AM PST by DoctorMichael (The Fourth Estate is a Fifth Column!!!!!!!!!!!!!!!)
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To: DoctorMichael
Amen and high damn time!!!!!!!!!!!!!!!!!
4 posted on 03/25/2004 6:56:28 AM PST by Sunshine Sister
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To: DoctorMichael
There should be no such thing as foreign legal precedent. To do so is to throw out any vestige of U.S. sovereignty as far as the judiciary is concerned. We then might as well submit all cases directly to the ICJ.
5 posted on 03/25/2004 7:31:48 AM PST by kenth
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To: DoctorMichael
This is nothing but political fluff. It's a non-binding resolution. It will be no more the law of the land than the foreign "precedents" people are worried about. The fact of the matter though is that legal scholars, including Supreme Court Justices, have always looked to foreign precedents and scholarly works by foreign legal minds to help them make decisions about how our laws should be interpreted. This is nothing new. It's not so much different than the Supreme Court in my state looking at laws from other states when interpreting our laws. These "foreign" decisions are not binding precedents, but they can be persuasive. Higher courts often look at non-binding precedents when looking at matters never ruled on before in the particular jurisdiction.

Do you know why there are so many foreign words in our law books? The reason is that we have always borrowed ideas from legal minds from other countries. Our country was founded and shaped using principles, philosophy, and laws from other parts of the world. Our common law was straight from England. Many of the ideas from people like Thomas Jefferson were shaped by philosophy from Romans, Greeks and even French scholars. Foreign ideas have always shaped common law. It's not such a bad thing, but too much of anything can be bad. Our courts should be careful to look to our own laws first. They should be careful not to jump on foreign bandwagons and fall prey to foreign fads. But that does not mean that we should stop learning from other legal minds in the world. We should never pass laws that forbid our legal scholars from gaining insight from great legal minds in other parts of the world, or even from examining trends in the way rights and laws are interpreted in other parts of the world.
6 posted on 03/25/2004 7:32:35 AM PST by TKDietz
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To: DoctorMichael
7 posted on 03/25/2004 9:09:38 AM PST by LiteKeeper (Impeach some of the Supremes)
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To: TKDietz
Just like the 1960 federal gun control laws were copied from nazi germany, we have to wonder how many OTHER laws are copied from other nations.

Didn't Arlen Specture try and pull some "not proved" Irish law BS during the clinton impeachment. How much does anyone want to bet the AWB is copied from some EU nation? How about some hate speech laws are modeled on some socialist law.

How about Hitlary care?

There is no originality is these volunteer lawmakers. Perhaps we should adopt a draft system. (we have a draft system for jury duty.)
8 posted on 03/25/2004 4:00:11 PM PST by longtermmemmory (Vote!)
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To: longtermmemmory
"Just like the 1960 federal gun control laws were copied from nazi germany, we have to wonder how many OTHER laws are copied from other nations."

Lot's of them. If you looked into it you would also see that a lot of state laws are either exact copies of or at least paraphrase laws from other states. This is and has always been common practice. Legislators don't want to have to re-invent the wheel every time they write or adopt a law. They often look at what seems to be working in other states (and even other countries) and copy it. This has been going on since the advent of written laws. Hammurabi's code was widely copied. Roman law was widely copied, as was the Napoleonic law. I don't see a problem with learning from each other and building on the achievements of those who have come before us. We have plenty of laws in this country. Much of the body of law is original. Much of it is just codified common law (case law). Much of it is borrowed from elsewhere.

This thread isn't about code though. The article was about the Supreme Court looking at foreign precedent and laws when interpreting our own laws. This isn't something that generally bothers folks unless they disagree with the court's decisions. Then they get all upset about it. That's what's going on here. If the decisions where more in line with conservative principles, there wouldn't be articles like this posted here on freerepublic. The only people complaining would be liberals.

Don't get too worked up about courts looking outside their jurisdictions for ideas on how to rule on matters of "first impression" or issues that have not previously been decided under the current laws in the given jurisdiction. This is standard practice. I've seen it done again and again in many of the hundreds and hundreds (if not thousands) of cases I've read over the years. If the court does not have "binding precedent" telling it how it should rule, it looks elsewhere to other "persuasive authority." This other "authority" is not binding. There is no stare decisis principle requiring courts to follow the lead of foreign precedent or works from legal scholars. They only look at foreign precedent for ideas, to see how other courts or even legislative bodies have handled issues that remain unresolved in the law on the case they are deciding.
9 posted on 03/26/2004 3:02:46 PM PST by TKDietz
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To: TKDietz
FR went down and things have been a mess.

You said, "....political fluff. It's a non-binding resolution...."

So what.

The entire content of your Post seems to indicate that you think that there is NOTHING to worry about and therefore NOTHING should be done. Well I DO worry, and apparently a few of our elected representative are worried too.

You advocate a 'Business as usual' attitude. I disagree. However, theres no use in getting out an atomic bomb to swat a mosquito. There is no use (at the moment) in enacting specific laws to deal with something that may, or may not, be a problem. This is more of a 'shot across the bow' in warning.

Furthermore, I would prefer our Justices use our Constitution (and others, such as the Dec. of Independence and the Federalist Papers etc.) as the document(s) to provide guidance NOT Euro-Socialist clap-trap.

10 posted on 03/26/2004 6:57:07 PM PST by DoctorMichael (The Fourth Estate is a Fifth Column!!!!!!!!!!!!!!!)
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To: TKDietz
No I agree about states, however I do have a serious problem with looking to other governments. Once had a lawyer try and creat an international trend based on other nations laws.

Fortunatly it was easy to diffuse based on the fact we were in FL law and in the USA. (and opposing counsel was a bit of a weenie)
11 posted on 03/26/2004 9:13:09 PM PST by longtermmemmory (Vote!)
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To: DoctorMichael
Your elected representatives aren't doing spit. They're just puffing out their chests. I'm not advocating a business as usual attitude, I'm just pointing out that what we are seeing is business as usual.

This is a stupid thread. I'm not going to argue with you guys about this.
12 posted on 03/26/2004 10:13:18 PM PST by TKDietz
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