Comparative Law

Fascinating developments in the USSC on the extent to which foreign law is relevant and welcome.

This week’s New Yorker has a feature on Justice Kennedy: see “How Anthony Kennedy’s passion for foreign law could change the Supreme Court”

  • The basic debate between the isolationist wing of the court (Nino Scalia) and Kennedy, Breyer and Ginsburg is sketched out well in

  • A good scholarly analysis is found in Professor Anderson’s paper at

  • and the fuller analysis from SSRN at

  • .

    Given that section 1 of the Canadian Charter compels the examination of foreign law, and that Canadian law continues to evolve with strong influences from English, American and French traditions, are we doing enough to ensure that tomorrow’s lawyers are as comfortable as they should be with foreign materials?


    1. You beat me to the punch by scant minutes, Simon. It is a fascinating piece, I agree. Two things struck me:

      No mention of Canada at all that I could see, whereas at least a dozen other countries were mentioned. Another example of U.S. inability to see what’s on their doorstep.

      The other thing is the mention of the internet:

      In May, Kennedy testified before a House committee about the Supreme Court’s budget, and he mentioned in passing that, like many lawyers, he conducted legal research on the Internet. This prompted Tom DeLay, the House Majority Leader, to tell an interviewer from Fox News Radio, “We’ve got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States. That’s just outrageous, and, not only that, he said in session that he does his own research on the Internet. That is just incredibly outrageous.?

      Does DeLay simply not know what the internet is? Or is it worse than that?

    2. There is a recent article on this point discussing the US: Glensy, “Which Countries Count?: Lawrence v. Texas adn the Selection of Foreign Persuasive Authority” LEXSEE 45 VA. J. Int’t Law. 357 (Virigina Journal of International Law, Winter 2005). Summary makes the same point as Tom DeLay.