Blog Round-up, Tuesday, May 31st
Rick Hasen of the Election Law Blog has this post about the cases he is watching for eventual review by the Supreme Court.
Orin Kerr, on Volokh Conspiracy and Michael J. Kelly, Associate Professor of Law at Creighton University posting on ACSblog, have engaged in a lively debate on Supreme Court citations to foreign law. Here is Kelly’s first post, Kerr’s first and second response and Kelly’s reply.
So far, I think Orin is winning. Kelly just really doesn’t seem to be grappling with this idea that maybe foreign law is simply of no relevance to constitutional interpretation. Which seems strange, because you’d think that if he can describe an originalist position, he should be able to understand it, even while disagreeing with it, yet he clearly doesn’t.
I think that the best response was one of the comments to Kelly’s first post (not mine), which ran as follows:
Kelly:
Indeed, [Justice Breyer] admits the possibility that we might just learn something.
David:
That’s one of those statements designed to sound profound, without actually making any sense. We “might just learn something”? Who could be against “learning something”? So it must be a good idea, right?
Well, no. We “might just learn something” from watching MTV, investigating foreign law, or taking a class on automotive repair. All of those are perfectly valid activities. But none of them have anything to do with the Supreme Court’s job in deciding constitutional cases.
As I said a few days ago, I think Justice Scalia’s explanation of why foreign law is irrelevant is wholly convincing, but I’d love to hear a decent case made that explains why foreign law IS relevant; neither Kelly - nor Justice Breyer - has yet done so.
Comment by Simon — May 31, 2005 @ 10:22 am
Foreign v. International
Is there a move afoot to blur the distinction between international law and foreign-law citations in judicial opinions?
Comment by Vote for Judges — May 31, 2005 @ 10:48 am