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The Supreme Court’s Use of Foreign Law in Constitutional Rights Cases

An Empirical Study

Published online by Cambridge University Press:  21 October 2022

Stephen A. Simon
Stephen A. Simon*
Affiliation:
University of Richmond
*
Contact the author at [email protected].
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Abstract

A trio of Supreme Court decisions between 2002 and 2005 intensified debate over judicial reliance on foreign law. The literature has been dominated by arguments over the desirability of foreign law citations in the abstract, without sufficient attention to how the Court actually has used foreign law. To ground the normative debate, this article presents analysis of a newly created database containing cases from the Court’s earliest period to the present day in which the lead opinions relied on foreign law in deciding constitutional rights cases. The article uses this analysis to (1) make sense of why the recent trio of decisions was so controversial, even though the practice of citing foreign law was not new, and (2) show why many of the justifications offered by scholars for judicial reliance on foreign law bear no relation to how the Court has employed foreign law in practice.

Type
Research Article
Information
Journal of Law and Courts , Volume 1 , Issue 2 , Fall 2013 , pp. 279 - 301
Copyright
© 2013 by the Law and Courts Organized Section of the American Political Science Association. All rights reserved.

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Footnotes

Many thanks to David Klein and the anonymous reviewers for their very helpful comments and suggestions on earlier drafts of this article.

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