3.26.2005
Outsourcing Rights (WashingtonPost.com)
Friday, March 25, 2005; Page A18
THE CASE OF Gary Sherwood Small didn't get much attention when the Supreme Court considered it last fall. It raised what may have seemed a trivial question of whether the words "any court" in a federal criminal law mean any court in this country or include foreign courts as well. Yet the recent public debate between Justices Antonin Scalia and Stephen G. Breyer and the high court's opinion striking down the death penalty for juveniles have together pushed into the public arena the once academic question of how U.S. courts should regard foreign legal decisions. In that context, Mr. Small's disturbing and illuminating case deserves a second look.
The debate over foreign law has grown in importance as the court has heard more cases involving America's role in the world. Should U.S. courts consult foreign practice when assessing whether a punishment is "cruel and unusual" for purposes of the Eighth Amendment? Should international court judgments made under treaties this country has signed bind U.S. courts? Should the judiciary apply international humanitarian law to detainees in the war on terrorism in the absence of explicit congressional direction?
This panoply of questions has triggered a depressingly ideological response, with many conservatives decrying the use of foreign court judgments to inform U.S. adjudication in all circumstances and many liberals and human rights activists keen to have U.S. courts consult foreign sources as a matter of course. In recent years, the centrist faction on the Supreme Court has embraced the transnational approach as well.
(More ... Outsourcing Rights (washingtonpost.com)) ¶ 10:19
THE CASE OF Gary Sherwood Small didn't get much attention when the Supreme Court considered it last fall. It raised what may have seemed a trivial question of whether the words "any court" in a federal criminal law mean any court in this country or include foreign courts as well. Yet the recent public debate between Justices Antonin Scalia and Stephen G. Breyer and the high court's opinion striking down the death penalty for juveniles have together pushed into the public arena the once academic question of how U.S. courts should regard foreign legal decisions. In that context, Mr. Small's disturbing and illuminating case deserves a second look.
The debate over foreign law has grown in importance as the court has heard more cases involving America's role in the world. Should U.S. courts consult foreign practice when assessing whether a punishment is "cruel and unusual" for purposes of the Eighth Amendment? Should international court judgments made under treaties this country has signed bind U.S. courts? Should the judiciary apply international humanitarian law to detainees in the war on terrorism in the absence of explicit congressional direction?
This panoply of questions has triggered a depressingly ideological response, with many conservatives decrying the use of foreign court judgments to inform U.S. adjudication in all circumstances and many liberals and human rights activists keen to have U.S. courts consult foreign sources as a matter of course. In recent years, the centrist faction on the Supreme Court has embraced the transnational approach as well.
(More ... Outsourcing Rights (washingtonpost.com)) ¶ 10:19
