Not long after the Supreme Court's decision in Lawrence v. Texas, (1) I was discussing the use of foreign and international law in constitutional interpretation with a federal judge (who shall remain nameless). After a few minutes, this judge, one of the most conservative on the federal bench, said that in his court there are two kinds of authority: binding and persuasive, and that anything that isn't binding is persuasive. For instance, he could refer to a movie or other popular culture if it helped make his point. He then said that foreign and international law could be far more persuasive than law from the Ninth Circuit.
The fact of the matter is that the Supreme Court and federal and state courts throughout the country have been using foreign and international law in their decisions since the Eighteenth Century. (2) Every member of the current Supreme Court who has sat for a full term has either authored or joined opinions that have used foreign and international law, in some way, to interpret constitutional provisions that facially have no international implications. (3) Until recently, discussions of foreign law in very famous Supreme Court cases, from Dred Scott (4) to Miranda (5) to Roe v. Wade, (6) have gone largely unnoticed. Other discussions of foreign law in famous opinions, such as Justice Harlan's cryptic use of foreign law in his Poe v. Ullman dissent, (7) are still fairly obscure. Listing every case in which this practice has occurred would take far more time than we have here today.
In light of the enormousness of this subject, I will discuss something that is often not mentioned: the way that state courts have used foreign law and international opinions in their recent jurisprudence. (8)
While there's been much ink shed in the last two years over the relevance of the views of the world community in Supreme Court interpretation, the states have largely been ignored in this commentary. (9) As difficult as it is to construct a coherent narrative of legal trends with the Supreme Court, surveying state law is like watching Brownian motion.
That said, the general scholarly consensus seems to be that foreign law is not often used by contemporary state courts, except in certain discrete areas where the substance of foreign law is necessary to deciding domestic law questions. These areas include serving process, conducting discovery, ensuring recognition of foreign judgments, assessing rights under foreign law in probate and domestic relations matters, deciding choice of law issues, and in interpreting contracts with forum selection clauses. In other words, when the courts really can't get around it.
Outside these enclaves, however, state courts can and do use foreign law, representing international opinion on social and legal matters, in a variety of areas.
Many state courts have used foreign laws and views to interpret and make common law, the arena in which their authority is at its greatest. Just this year, in the disastrous Naxos Records case, (10) the New York Court of Appeals cited the international community's views on whether the sale of a sound recording constitutes a "publication" in determining whether certain musical recordings were protected under New York common copyright law. (11) Numerous state courts have used foreign law in making and revising their tort law. State courts in Wisconsin, 12 New Jersey, (13) Louisiana, (14) and Hawaii (15) have considered the predominant view in the world that municipalities should be liable for the torts of public actors in reconsidering common law precedents to the contrary.
Similarly, in the seminal case of Li v. Yellow Cab Co., the California Supreme Court cited the laws of France, Austria, and Portugal in supplanting the traditional contributory negligence system with a pure comparative negligence system, (16) and the Alaska Supreme Court cited the laws of "Austria, Canada, France, Germany, the Philippines, Portugal, and Spain" for the proposition that a comparative negligence system "has long been used in other nations of the civilized Western world. …