Posts Tagged ‘Federalism’
Posted on February 18th, 2010 • Filed under Uncategorized • 2 Comments
Eugene Volokh reports on a bewildering new bill making its way through the Arizona state legislature which would ban the application of foreign or “religious sectarian law” in Arizona courts.
A. A court shall not use, implement, refer to or incorporate [any] tenet of any body of religious sectarian law into any decision, finding or opinion as controlling or influential authority.
B. A court shall not use, implement, refer to or incorporate any case law or statute from another country or a foreign body or jurisdiction that is outside of the United States and its territories in any decision, finding or opinion as either:
1. Controlling or influential authority.
2. Precedent or the foundation for any legal theory.
C. Any decision or ratification of a private agreement that is determined, on the merits, by a judge in this state who relies on any body of religious sectarian law or foreign law is null and void, is appealable error and is grounds for impeachment and removal from office.
D. This section applies to a federal court sitting in diversity jurisdiction. . . .
Justice Anthony Kennedy of the United States Supreme Court has received significant media attention in the past decade for citing foreign law in Supreme Court cases. Apparently some Arizona legislators are concerned that this practice, which has been running rampant in the Supreme Court since the 19th century, will infect the otherwise pristine Arizona state court system. Accordingly, they’re taking steps to outlaw it.
Setting aside “religious sectarian law” entirely, this bill’s bar on the application of foreign law is misguided for the following reasons.
The bill misunderstands its own subject matter.
The bill bars the use of foreign law as “controlling or influential authority” or “precedent or foundation for any legal theory.” Generally we discuss authority in terms of “mandatory authority” and “persuasive authority,” and it seems likely that here, “controlling” means “mandatory” and “influential” means “persuasive.”
For our non-lawyer friends, “mandatory authority” means a judge is bound to follow certain legal precedent. For instance, rulings of the Arizona Supreme Court are mandatory authority — lower state court judges are bound to follow them. “Persuasive authority” means that a judge, finding no mandatory authority on a particular point, cites another judge’s approach to the same legal problem as persuasive. Citing to persuasive authority has the effect of saying, “We haven’t decided how we address this problem yet in Arizona, but here’s how they address it in [California, or New York, or Great Britain], and we should consider addressing it in the same way.”
At the risk of circularity, foreign law generally isn’t applied as mandatory authority in the United States because it’s foreign law. It doesn’t apply here. In some circumstances, however, foreign law is relevant and must be interpreted; for instance, when a contract which is the subject matter of a dispute between an American company and, say, a Canadian company states that the contract must be performed according to Canadian law. American courts would have to look at Canadian law in such circumstances to determine if the contract had been breached. If every Arizona contract case involving Canadian law was forced out of Arizona courts and into the Canadian judicial system, some number of American companies would pay a significant price in convenience and expense.
United States courts will occasionally look to foreign law as persuasive authority. In those circumstances, the judge is not “following” foreign law or “applying” it. The judge is merely stating that its reasoning is persuasive. In other words, foreign law cannot be seen as governing the judge’s decision. The thought process behind the foreign law is merely informing the domestic decision. Binding precedent can only be created if a number of other courts in the same legal system follow this initial decision, in which case other judges are confirming that they think the developing precedent is sound. Under the new Arizona law, the underlying line of cases in this situation would stem from a “foundation” of foreign law, despite the fact that the judges would be coming to their own conclusions and developing an independent basis for their decisions, and would thus be invalid despite the application of individual judgment.
Finally, this law’s stated purpose is to prevent the misapplication of legal authority. There is already a remedy for the misapplication of legal authority, whether mandatory or persuasive — appeal. In fact, appeal is asserted as one of the remedies in the bill. Parties have always been able to petition for review of decisions rooted in inappropriate reasoning. This law seems to contemplate a conspiracy among every judge in Arizona to infect the common law with foreign legal principles, or some other situation in which the court system couldn’t be trusted to identify its own mistakes.
Portions of the bill are probably unconstitutional.
While it purports to restrict the ideas judges are permitted to espouse, and thereby restricts speech, the bill is probably not unconstitutional under current First Amendment jurisprudence. The United States Supreme Court ruled in Garcetti v. Ceballos that statements made by public employees pursuant to their official duties are not protected by the First Amendment. Judicial opinions are certainly statements made in the course of public employees’ official duties.
However, the bill is probably unconstitutional, at least as it applies to federal judges, because it violates principles of federalism. It purports to dictate the conduct of federal judges, who are vested with authority under the Constitution and over whom state governments have no authority. When federal judges sit in diversity jurisdiction, they apply the substantive law of Arizona. Now the substantive law of Arizona says that federal judges can’t consult foreign law as part of applying the substantive law of Arizona, even if such law intersects with the substantive law of Arizona. However, while federal judges must interpret Arizona law in such instances, states can’t tell federal judges specifically how to interpret the law, because it’s the job of the federal judiciary to “say what the law is,” and that seems to be exactly what the state legislature is doing in limiting the means by which federal courts can address the cases before them.
Finally, a sufficiently determined judge will find ways to introduce ideas he or she finds persuasive.
Although it is no longer as popular as it once was to be a vulgar legal realist, I fear I still may be one. In simplest terms, I mean that I believe that within the bounds of professionalism, judges often reach conclusions first and then reach back into the law to find support for those conclusions. An appeal to foreign law, then, may be just another means of supporting a position a judge has already reached.
Here, if judges find the insights of foreign legal authorities useful but cannot use them directly, I predict that they will not simply throw their hands up and abandon those insights. I am sure they will find other ways or working those insights into their own work. Who would know any better, and who is going to go to the trouble of investigating the provenance of every supposedly original idea in a judicial opinion?