My goal in this Essay is simply to lay out the criticisms of the use of non-U.S. law in constitutional interpretation, so as to identify what might be correct (not much, in the end) in those criticisms. I discuss criticisms based on theories of interpretation, on the claim that reference to non-U.S. law is merely decoration playing no role in generating outcomes, on the role the Constitution has in expressing distinctively American values, and on the proposition that judges are unlikely to do a good job in understanding - and therefore in referring to - non-U.S. law. This last "quality-control" criticism has some validity, as does one version of the "expressivist" criticism, but only when they are formulated much more carefully than they have been in prior discussions of the issue.
90 Minn. L. Rev. 1275-1302 (2006)
Scholarly Commons Citation
Tushnet, Mark V., "When Is Knowing Less Better than Knowing More? Unpacking the Controversy over Supreme Court Reference to Non-U.S. Law" (2006). Georgetown Law Faculty Publications and Other Works. 236.