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Friday, January 14, 2005


SCALIA vs. BREYER: DEBATE ON FOREIGN LAW 



MSNBC's Tom Curry wrote a very good article that highlights a joint appearance of Supreme Court Justices Antonin Scalia and Stephen Breyer at American University Law School. Curry deserves kudos for wanting to write about the seemingly arcane topic of "foreign law" that most journalists would shy away from.

Curry credits Scalia for being the more stylistic, engaging and entertaining speaker. Scalia is also credited with being more forceful with his arguments and for putting Breyer on the "defensive." As someone who has met Justice Scalia, I think that Curry did a good job of conveying the Justice's great sense of humor and natural charisma.

If this was a kind of off-Broadway tryout, Scalia came across as learned, a bit sarcastic at times, but collegial.

At times, Scalia gave a glimpse of his fast-talking, night-club comedian's persona.


Curry gets to the heart of the matter by correctly noting that Scalia sees himself as a populist fighting it out with elitists (despite Scalia's Harvard Law School pedigree). Scalia reminded his audience that they are the cream of the crop and do not necessarily reflect the views of most and average Americans. Scalia also excoriated Chief Justice Warren's "evolving standards of decency", a phrase from a 1958 decision.

Curry pays a lot of attention to Scalia's views of using foreign law as precedent. Curry doesn't seem to give much credence to Breyer's arguments except to say that Breyer's most cogent argument for using foreign law was to do so for diplomatic reasons. However, I am not sure that American law should be shaped by motivations to make some foreign judge happy that we cited their opinion.

WASHINGTON - It was not Muhammad Ali vs. Joe Frazier, but by Washington standards it was a glamorous sparring match: Supreme Court Justices Antonin Scalia and Stephen Breyer jousting at the American University law school late Thursday afternoon over whether American jurists should look to foreign legal precedents when making their decisions.

Scalia, the conservative, was the more vigorous of the two in his making his arguments and made Breyer, generally part of the court’s liberal wing, sound a tad defensive.
[...]
Scalia has called invoking foreign decisions a “dangerous” practice and he stuck to that position Thursday. But Breyer, Justice Anthony Kennedy and Justice John Paul Stevens have buttressed their decisions in death penalty and gay rights cases with citations of what foreign, especially European, judges have ruled in similar cases.
[...]
Breyer confessed he’d made what he called “a tactical error” in a 1999 death penalty case, when citing a judicial decision from Zimbabwe to help prove his contention that too long a delay in administering a death penalty makes the execution cruel and inhuman.

Zimbabwe, he said wryly, is “not the human rights capital of the world.”


MSNBC: Justices debate use of foreign precedents, by Tom Curry

Update: Other blogs discussing this article are, How Appealing, Brian Patton, James Brink, Kenneth Anderson, Cleverly Named Blog, and Angry New Yorker.

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