David Zaring (Washington & Lee) has written The Use of Foreign Decisions by Federal Courts: An Empirical Analysis. The Abstract:
This article adds an empirical perspective to the debate over the use of foreign authority by federal courts. It surveys sixty years of federal court practice in citing opinions from foreign high courts, through a citation count analysis. The data reveals that federal courts rarely cite to foreign decisions, they do so no more now than they did in the past, and on those few occasions where they do cite to foreign decisions, it's usually not to help them interpret domestic law. Instead the citation of foreign decisions is best understood as a relatively rare phenomenon of judicial dialogue in cases where international issues are squarely presented by the facts. The article examines those few cases where federal courts have cited foreign decisions in some detail, and briefly considers some implications of the limited use of foreign decisions by federal courts.
Thanks to Sara Benesh for directing me to this blog.
I wonder if Zaring understates the importance of citations to foreign courts. He notes, for example, that there are only 30 citations to foreign law in constitutional cases between 1945 and 2005, but the category includes cases like Miranda, Atkins, and Lawrence, which have profoundly affected the business of other courts (especially when it comes to Miranda). To gauge the impact of foreign law, it might be necessary to take into account the importance of the cases citing it, and their impact on the subsequent behavior of federal courts.
On the whole, though, this is a very accessible article, one that I will probably assign to my undergraduates in Judicial Behavior in the fall.
Posted by: Bob Hume | 05 May 2006 at 09:07 AM