Ryan C. Black, Ryan J. Owens, Daniel E. Walters, and Jennifer L. Williams
Published in 2014, Georgetown Law Journal 103(1).
Over the last ten years, judges, scholars, and policymakers
have argued—quite vehemently at times—about whether U.S.
courts should use transnational sources of law to interpret
domestic legal doctrine. All eyes in this debate focus on
the U.S. Supreme Court and its use, misuse, and alleged use
of transnational law. And almost all the debates are
normative. Some scholars and judges argue the Court is
correct to use transnational law. Others believe to do so
is constitutional apostacy.
Still, the controversy seems to have generated more heat
than light. Among the clamor can be found little empirical
work on the conditions under which Supreme Court Justices
actually use transnational law. Is it in fact the case that
only liberal Justices employ transnational law—or do
conservatives as well? In addition, there is little work on
which countries Justices cite when they do use
transnational law. Do they cherry pick whichever country
works best in the given case, or is there a lower bound of
plausibility when selecting countries to examine and cite?
The authors provide the most systematic empirical
exploration of the Court’s use of transnational law to
date. Their results challenge conventional wisdom and prove
to upend the existing debates over transnational law. The
data show that Justices are more likely to reference
transnational law when they exercise judicial review and
when they overturn precedent, which likely explains much of
the controversy around the practice. Importantly, the data
show, further, that all Justices cite transnational law.
Liberals cite transnational law when they render liberal
decisions, and conservatives cite transnational law when
they render conservative decisions. Liberals and
conservatives alike employ such law because they are both
ideologically conscious, strategic judicial actors who seek
to support their decisions with as much persuasive material
as possible. Finally, the results suggest that Justices
cite countries with regard to their political and legal
characteristics. They cite what the public would consider
to be among the most legitimate countries across the globe.
In other words, on the whole, Justices seem to borrow from
countries most like the U.S. Whether these results are good
or bad is unclear; what is clear, however, is that the
normative debate over using transnational law must take a
turn and address the authors’ findings.