Why might a court refer to non-U.S. law? Justice Stephen Breyer's pragmatic defense of the practice is probably the most widely known, as are its defects. Here, I want to sketch a counterintuitive explanation for the practice. Referring to non-U.S. law in Supreme Court opinions might be a way in which Supreme Court Justices participate in the dissemination of a distinctively American self-understanding. By this I do not mean that Justices who refer to non-U.S. law necessarily endorse the (reasonable) interpretive theory that the U.S. Constitution instantiates universally true propositions of political morality. Rather, I mean that references to non-U.S. law might be a way of ensuring that the United States helps lead the world's nations to a better way of governing themselves and their peoples.
69 Alb. L. Rev. 809-815 (2006)
Scholarly Commons Citation
Tushnet, Mark V., ""A Decent Respect to the Opinions of Mankind": Referring to Foreign Law to Express American Nationhood" (2006). Georgetown Law Faculty Publications and Other Works. Paper 231.