Foreign Law and Constitutional Rights in the US Courts of Appeals: Findings and Implications

Abstract

Judicial reliance on foreign law has been hotly debated since the early 2000s, with commentators staking out competing positions on the role of foreign sources in con­stitutional interpretation. While the literature has been normative in focus, authors fre­quently incorporate empirical assumptions about how judges have used foreign law in practice. Yet scholars have done little empirical work to ground the debate and have fo­cused so predominantly on the Supreme Court that the US Courts of Appeals have been largely ignored. This study analyzes findings from a newly created database containing Courts of Appeals decisions relying on foreign law in deciding constitutional rights issues from the earliest cases to the present day. The surprising results include the low number of overall cases, the dearth of cases using foreign law to challenge accepted principles, and the absence of cases engaging the reasoning behind foreign judicial determinations. The findings serve as a jumping off point for the examination of normative concerns, including the risk of arbitrariness in judges’ decisions to rely on foreign law in particular cases.