Doctrines without Borders: The "New" Israeli Exclusionary Rule and the Dangers of Legal Transplantation
Blum, Binyamin, Stanford Law Review
INTRODUCTION I. EXCLUDING ILLEGALLY OBTAINED EVIDENCE IN ISRAEL: THE ISSACHAROV DECISION A. Issacharov and Meiri: Has Anything Really Changed? B. Distinguishing Admissibility from Weight in Bifurcated and Unitary Courts II. LOST IN TRANSLATION: ADMISSIBILITY IN ISRAELI COURTS THROUGHOUT THE DECADES A. The British Mandate over Palestine: Admissibility as a Legal Standard B. The 1960s: Admissibility as a Separate Procedural Step C. Meiri: Admissibility as Rigidity D. Developments Abroad: The 1980s and 1990s E. The Exclusionary Rule and Rejection of Legal Transplants III. THE ANGLICIZATION OF ISRAELI EVIDENCE LAW A. The Empirical Basis B. The British Mandate and Its Legacy C. Legal Education D. Language and Availability of Sources E. Israeli Procedure and the Common Law F. Why Legal Doctrines Travel: Problem Solving, External Imposition and Emulation G. The Dangers of Treating Foreign Law as Precedent IV. TALKING ABOUT A CONSTITUTIONAL REVOLUTION A. Issacharov and Miranda: Revolution or Evolution? B. How Easy Cases Can Make Bad Law C. Unfinished Business: Issacharov and the Constitutional Revolution D. Comparative Law and Legitimacy CONCLUSION
In recent years, the proper role of comparative law in the jurisprudence of American courts has become a hotly debated and controversial topic. The question was brought to the forefront of the legal community's attention following a number of United States Supreme Court decisions, perhaps most notably in Atkins v. Virginia (1) and Roper v. Simmons, (2) rulings that addressed the constitutionality of administering the death penalty to mentally retarded and juvenile defendants. In both decisions, the Court was divided on whether to regard foreign laws and practices as indicative of an evolving standard of decency when determining whether a punishment should be considered "cruel and unusual" under the Eighth Amendment of the United States Constitution.
Those who oppose reference to comparative law have argued that the use of foreign opinions to interpret domestic law unduly imposes foreign "moods, fads, or fashions" upon Americans. (3) Since laws are enacted by democratically elected representatives, the experience and legislation of other jurisdictions is immaterial and should carry little, if any, authority in their interpretation. (4) Critics contend that using foreign law to determine the proper scope of American legislation may award judges a legislative or treaty-ratifying power, an authority clearly reserved by the Constitution for other branches of government. (5) Judges who have used comparative law in formulating their opinions have been accused of "cherry picking" foreign law that supports their opinions; they have been charged with "sophistry" and disguising their personal and political preferences behind a mask of international consensus. (6)
Proponents of comparative law have countered that although foreign law should not bind American courts, surveying international practices and exploring the approaches of other nations may lend American courts useful insight into common problems and affirm their convictions about correct solutions. As Justice Kennedy has said, "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions." (7) Others have emphasized comparative law's crucial role in prompting us to challenge the necessity and wisdom of doctrines to which we have grown accustomed and that we might view as unchangeable. Foreign law reminds us that other, and perhaps better, solutions might exist elsewhere. (8) True, supporters allow, the citation of foreign law may be prone to abuse, but such risks are neither unique to nor inherent in the use of comparative law. (9)
Despite considerable attention given to the proper role of comparative law in interpreting domestic law, legal scholarship in the United States has concentrated primarily on the use of foreign law by American courts. …