Legal Daily News Feature
Foreign Law By Joshua Nave The Supreme Court on Monday issued three decisions. Two of those cases have received the lion’s share of ink today. In Graham v.
Florida the Court ruled that imposing a life sentence without possibility of parole on a juvenile for crimes other than homicide is a violation of the 8th amendment ban on cruel and unusual punishment.
05/20/10 In US v. Comstock the Court ruled that the federal government could issue civil commitments for released prisoners deemed to pose a sexual threat to the community. Both of these cases have been dissected elsewhere. That leaves us with Abbott v. Abbott. Unless you practice family law in an immigrant community, Abbott v. Abbott is probably not a very interesting case. Mrs. Abbott moved from Chile to the United States bringing with her a minor child. The father wants the child returned to Chile where he has the right, under Chilean law, to veto the move to another country. At issue is whether or not that right, called a ne exeat right, is a ‘’right of custody’’ under the Hague Conventions. If so, then the treaty requires the return of the child to its home country for adjudication by the local courts. In a 6-3 ruling written by Justice Kennedy, the Court held that a ne exeat right is a ‘’right of custody’’ as understood by the Hague Conventions. Reading through the decision and the briefs leading up to it is tedious dry work. In fact, nothing about this case jumped out to me until I read a recap of the oral arguments. When Mrs. Abbott’s counsel took to the floor, Justice Scalia suddenly developed an interest in foreign law. “The purpose of a treaty
is to have everybody doing the same thing,” Scalia said, “and I think, if it’s a case of some ambiguity, we should try to go along with what seems to be the consensus in other countries that are signatories to the treaty.” While I agree with him on the basic argument, it still strikes as me as an odd one from a jurist that typically sticks pins in voodoo dolls of any lawyer or judge that turns to foreign law in an American courtroom. Holding to Scalia’s argument in this case would create a paradigm whereby the first jurisdiction to hear a case brought under a treaty obligation would set the precedent for interpretation of that treaty, which seems contrary to Scalia’s traditional rejection of using foreign case law even at an advisory level. However there is a distinction to be made here. Scalia’s usual rejection of foreign law is centered primarily around constitutional questions, such as the meaning of ‘’cruel and unusual’’ as found in the eighth amendment. In the present case, there is no question of constitutional interpretation. Rather the Court is being asked to interpret a document that is itself a part of international law. That distinction appears to be enough to overcome Scalia’s distrust of foreign jurisprudence but doesn’t explain his willingness to allow foreign courts the authority to set precedence in cases of first impression. In fact, the only other example of Scalia looking favorably on foreign law that I’ve found is from 12 years ago and then only as a small part of an opinion that he signed on to but didn’t himself write.
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