American Judges Should Consider Foreign Law

Throughout Judge Sotomayor’s confirmation hearing Republicans have spent a great deal of time questioning her about the value of foreign law to America’s judicial system. Personally, I have no idea why so many Republicans are so concerned about judges consulting foreign law when deciding cases. This does not mean that members of America’s judiciary should use foreign law to settle disputes, but it is there really something wrong with a judge looking at the jurisprudence of other nations to see if bright lawyers in those nations have developed a creative solution for a difficult legal question?

Currently, judges are free to look at many sources beyond the Constitution and our written laws when they consider the facts of cases before them. Courts routinely reference articles and books written by academics, how is considering those sources any different than reading a careful opinion written by a foreign judge? If we force judges to ignore what is happening in the courts of foreign nations we are pretending that our legal system has adequately solved every legal problem the world has ever seen. The reality is that there are many gifted lawyers in countries not named America. What is wrong with considering their contributions to the advancement of laws? If French doctors found a cure for cancer should America reject using it until American doctors create their own? Obviously, the answer is no. So, why is it so wrong for America’s judges to consult the approaches used by foreign judges who may have considered principles not before considered by American courts?

Tags: Congress, judicial branch, judiciary, law, news, opinion, politics, Senate, Sonia Sotomayor, Supreme Court