Foreign Law as “The Other”
In two recent, provocative articles, Professor Sheldon Bernard Lyke of Whittier Law School seeks to draw deeper meaning from U.S. courts’ reluctance to engage with foreign law, and conservative opposition to such engagement. The first article, Making Strange Laws, 35 U.Pa.J. Int’l L. 675 (2014), draws on a qualitative analysis that finds parallels between conservative views of illegal immigrants and conceptions of foreign law. The second article, Is Resistance to Foreign Law Rooted in Racism?, 109 Nw. U. L. Rev. Online 41 (Aug. 31, 2014), considers whether racism is at work in the U.S. Supreme Court’s resistance to transnational judicial dialogue. These articles are not yet up on SSRN, but the latter article is available online.
Sheldon Bernard Lyke, Making Strange Laws, 35 U. Pa. J. Int’l L. 675 (2014)
Abstract
The central argument of this Article is that conflict over the judicial practice to use foreign authority leads to the manufacture of foreign law into a dangerous stranger. Drawing on philosopher and sociologist Georg Simmel’s conceptualization of the stranger as a cultural object that sits on the border of the insider and outsider, I argue that there is a resistance to the use of foreign law in the United States. Foreign laws, like immigrants in the United States, are being constructed as tolerable illegals or threatening legals.
I perform an empirical qualitative content analysis of the senate confirmation hearings for Supreme Court nominees and their discussions of the practice of judicial citation of foreign law. The hearings of nominees Alito, Kagan, O’Connor, Roberts, and Sotomayor are studied. During these hearings, conservatives label foreign law as biased and dangerous. Most interestingly, however, are the ways in which foreign law emerges from these debates linked to otherness–particularly the otherness of disadvantaged gender and racial minorities. The Article connects the transformation of foreign law into a stranger to other conservative movements that have constructed foreign national immigrants as illegal strangers who should be feared. This work argues that foreign laws and decisions constitute a new American stranger.
Sheldon Bernard Lyke, Is Resistance to Foreign Law Rooted in Racism, 109 Nw. U. L. Rev. Online 41 (Aug. 31, 2014)
INTRODUCTION
Racism and oppression inhibit society and its actors and institutions from understanding the intricacies of ethnicity and race. This inhibition makes it more difficult for society to find solutions and remedy oppression. This Essay examines racism in the specific context of “transjudicial communications.” Anne-Marie Slaughter coined this term to describe the practice of courts in one country citing to the opinions and decisions of courts in foreign countries. In the United States, domestic issues of race may shape how legal actors and institutions understand and utilize transjudicial communications. In numerous instances, lawmakers and judges have expressed resistance to foreign law while debating aspects of racial inequality and racism in the United States.
More specifically, racism may fuel myopia on the Supreme Court of the United States by blocking Justices from access to useful foreign legal decisions. As a result, the Justices’ learning process regarding ethnicity and race is stifled. This is a troubling issue, particularly where the perspective lent by transjudicial communications could have been helpful in the Court’s recent discussions of the constitutionality of both race-conscious admissions in higher education and bans on race-conscious affirmative action programs. Specifically, a recent Brazilian Supreme Federal Court decision could have shed light on how the U.S. Supreme Court should view the relation between diversity and equality, how universities might address the U.S. Supreme Court’s concern over applications that allow for self-identification without third-party review, and whether to characterize affirmative action programs as benignly discriminatory, as opposed to manifestations of substantive equality.
The goal of this Essay is to situate transjudicial communications and the backlash against foreign legal citations into a conversation about race and racism. The goal is not to try to prove that opposition to foreign law is racist. That claim is better left for future research. Rather, at a minimum, the resistance to foreign and international law has correlations to racism and is grounded in a racial narrative.
In discussing racism and transjudicial communications, this Essay begins with a working definition of the contested conceptualization of globalization because transjudicial communications are a specific example of globalization. Second, I provide a brief overview of transjudicial communications in the United States and discuss how resistance to this process is linked to oppression and racism. Finally, I argue how racially-rooted resistance to foreign legal citation inhibits the possibilities for U.S. Supreme Court Justices to learn about race in the context of race-conscious university admissions. I use the example of the Supreme Federal Court of Brazil’s landmark affirmative action decision issued in April 2012 as an example of a missed opportunity for the U.S. Supreme Court to learn about race and the crafting of appropriate race-conscious remedies.