January 14, 2005


Justices Debate International Law on TV (AP, Jan 13, 2005; via PowerLine)

"U.S. law is not handed down from on high even at the U.S. Supreme Court," [Justice Breyer] said. "The law emerges from a conversation with judges, lawyers, professors and law students."

No wonder the law is sophomoric.

UPDATE: Courtesy of C-SPAN, the whole Breyer-Scalia debate can be seen here (RealPlayer required; via How Appealing).

UPDATE: Courtesy of Mike Daley, the original BrothersJudd discussion on this topic can be found here.

UPDATE: Transcript is here.

UPDATE: The Court Is Open for Discussion (Washington Post, 1/13/2004):

"We don't have the same moral and legal framework as the rest of the world and never have," he said yesterday, adding that the framers of the U.S. Constitution "would be appalled" to see the document they wrote interpreted in light of the views of European courts.

"What does the opinion of a wise Zimbabwean judge . . . have to do with what Americans believe," Scalia asked Breyer, "unless you think it has been given to the courts" to make moral judgments that properly should be left to elected representatives. "Well, it's relevant in this way," Breyer replied. "They are human beings there, just as they are here. You're trying to get a picture of how other people have dealt with it."

"Indulge your curiosity," Scalia joked, "just don't put it in your opinions."

Quite right. Foreign judges should influence our law in secret, not in public.

Posted by Paul Jaminet at January 14, 2005 12:20 PM

You were the first to inform/link to this discussion, I've been excoriating bloggers who didn't use your post, provided by me, to advise, whatever this major "discussion".
After being first, you didn't follow up and catch, either CSPAN or streaming video.
It's Winter in NH, what else is there to do?

Posted by: Mike Daley at January 13, 2005 11:25 PM

Mike - Orrin must be playing with his kids. If you can point me to the original post, I'll add a link in an update.

Posted by: pj at January 13, 2005 11:51 PM

This is totally outrageous. Where is the Constitution, the Legislature, the Common Virtue? When Judges think the law is an enclosed game and dialogue among a few, we don't have a system of justice, but a judicial tyranny.

Posted by: jd watson at January 14, 2005 4:34 AM

Some of us, myself included, have lost too many brain cells to plow through discussions like this. Please someone with an intact brain, give us a summary of what was said. What was Scalia's response to Breyer who has to be the lamest brain on the court.


Posted by: erp at January 14, 2005 8:31 AM

It's not just Breyer, O'Connor and Ginsburg have already pushed the concept that "international law" will be considered when the Supremes rule in the future.

Posted by: Sandy p at January 14, 2005 10:43 AM

It should be an impeachable offense for any American judge to cite any foreign law as precedent which was written after 1787.

Posted by: Bart at January 14, 2005 11:13 AM

One very serious problem is that it has been some time since law schools taught legal history other than as a soft option for a few nerds. The scary truth is that a lot of modern judges simply don't know how or why the common law developed and what principles make it different from civil or other systems. I've certainly drawn a few blank stares from the bench when I thought I was referring to bedrock principles everyone knew about. So, if history is a big blank and not of much use, you end up thinking we're all just one big happy family all facing the same problems here on planet earth and Justice Breyer's fatuous comment makes perfect sense.

Posted by: Peter B at January 14, 2005 2:03 PM

Obviously our legal system should ignore foreigners, but next to the atrocity that is Ali-Aba, this is nothing.

Posted by: David Cohen at January 14, 2005 4:13 PM

They should make law students spend a year in the military before going to law school. Much more effective than a draft.

"The drill instructors had a sideline in therapy. They did attitude adjustment. If the urge to whine overcame any of us, Sergeant Cobb took his attitude tool--it was a size-twelve boot on the end of his right leg--and made the necessary adjustments. It was wonderful therapy. It put us in touch with our feelings. We felt like not whining any more."

Law school will cease to be grievance school in a hurry.

Posted by: Random Lawyer at January 14, 2005 5:38 PM