Daniel A. Farber,
The Supreme Court, the Law of Nations, and Citations of Foreign Law: The Lessons of History, 95
Cal. L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/1729
The article attempts to examine the U.S. Supreme Court's (SC) reliance on foreign law in light of historic American attitudes toward the law of nations and other forms of foreign authority. First, it provides additional background on the current SC's reliance on foreign law. Second, it looks at the historical record, explaining how foreign law influenced the thinking of the framers of the Constitution and of the anti-slavery Republicans. Third, it surveys the history of SC's use of foreign law in constitutional decisions. Fourth, it assesses some of the arguments against SC use of foreign law in light of the history. Finally, it considers some of the practical problems facing American judges as they attempt to apply foreign jurisprudence.