England and America: the comparative law thread

[Voronwë the Faithful]

Yes, but it is certainly a practical problem. See my above posts for recent examples from the British jurisprudence. You're right that on a theoretical level it should be possible to research the relevant cases correctly. But, having spent the past year reading international and comparative jurisprudence, it is extraordinary to me how often they manage to get our American jurisprudence wrong. And I assume that unless foreign jurists are particularly bad at reading US jurisprudence, there are errors in citing other countries' jurisprudence as well, that I don't have the knowledge to catch.

I can't help but wonder whether they are as comparatively bad at citing even domestic law.

Even if these errors were corrected, there would still be the second concern I highlighted in my post from a couple of months ago: citing only the large, seminal decisions from a particular country seems to be a pretty good way of misstating the reality on the ground in that country. The way that lower courts and administrative tribunals implement the seminal high court decisions may mean that the day-to-day judicial reality in the country is far different than the seminal decision would lead you to believe. Doing meaningful comparative law analysis requires taking account of what happened after a seminal decision. That's incredibly time-consuming and nuanced - and is almost never attempted by courts engaging in a comparative law exercise. To be straightforward, I think Scalia is correct that they are usually just citing random foreign cases to support what point they want to make, anyway. The South African and British examples in this thread, and the others like them, have certainly heightened my sympathy for his point of view.

Yeah, that is certainly a justifiable concern. Interesting that Scalia and Kennedy are at opposite poles on this point. I remember when I saw Kennedy give the commencement address at my brother's Stanford graduation that he made a particular point of expressing how important he thought looking at international views on issues was.

[Aravar]

There again I cited in Court a decision of the High Court of Australia which is the only authority on a particular point on restitution, to do with what happens when a cruise ship runs aground.

There is of course a greater degree of commonality between the UK and Australia/ New Zealand/Canada, especially in cases where the decision is actually on a UK statute either as it is or reenacted in substantially the same form. I recently was researching a matter related to the meaning of a will and a Canadian decision was referred to in one of the major textbooks, on the wording of the Wills Act.

One thing I don't understand is how is the UK Court wrong to consider that the Calaifornian Court considered that capital punishment was cruel and unusual just becasue the legislature overruled it? To us the Wills example, if Canada enacted a radically different statue on wills, that wouldn't alter the decision on the earlier wording, would it?

[nerdanel]

One thing I don't understand is how is the UK Court wrong to consider that the Calaifornian Court considered that capital punishment was cruel and unusual just becasue the legislature overruled it? To us the Wills example, if Canada enacted a radically different statue on wills, that wouldn't alter the decision on the earlier wording, would it?

To be clear: this one was the South African Constitutional Court, not a UK court. I put it in this thread because it related back to my post with respect to the decisions of the UK courts.

The reason why the citation is in error is because the relevant issue for the South African court was whether capital punishment is cruel and unusual. Given that question, it was relevant to cite jurisdictions which had reached that conclusion. California is not (yet?) such a jurisdiction: the voters are granted the final say on the matter under our constitutional setup, and they have declared it otherwise; only the U.S. Supreme Court would have the power to trump that. The South African court thus cited a reality that did not exist: that capital punishment was outlawed as cruel and unusual punishment in California. At a minimum, they should have stated, "Although we realize that the California electorate overturned this decision, explicitly amending the state constitution to deem capital punishment not to be cruel and unusual, we still find the California Supreme Court's prior reasoning to be persuasive." I think that at a minimum that would be necessary where the decision is no longer good law in the jurisdiction in question.

I would say the same thing is true - much though it pains me - for the California Supreme Court's decision saying that same-sex couples have a state constitutional right to marry. That has been overruled by state Proposition 8, providing that marriage in the state is between a man and a woman. For a foreign court to cite the In re Marriage Cases decision for the proposition that the "California Supreme Court has declared that same-sex couples have a constitutional right to marry" - without acknowledging the constitutional-magnitude aftermath that stripped them of that right - at best would be misleading and improper, in my view. However, since a court is theoretically free to be "persuaded" by whatever it desires, I suppose that a court could say that they found the Marriage Cases decision persuasive as to the meaning of equal protection, etc., and the electorate's reversal of that decision to be unpersuasive, so they were choosing to emulate the overruled case.

It is the lack of awareness or acknowledgment of the "bad law" status of the case in the home jurisdiction that, to me, constitutes error -- or at least serious sloppiness.