Foreign Precedents in Constitutional Litigation: U.S. National Report


In the United States, academic interest in foreign and/or comparative law has never been, as a general proposition, very widely spread. Actually a lot of “comparative law” is being done, of all sorts, on “the national level” both “horizontally” between the fifty states and vertically between the states of the Union and the federal government. When it comes to taking into account foreign constitutional law, some scholars have strongly argued that looking at “other countries may provide helpful empirical information in interpreting the U.S. Constitution” (Vicki C. Jackson) or that “looking abroad simply helps do a better job at home (Anne-Marie Slaughter). Yet, these scholars will not go as far as suggesting that foreign courts decisions interpreting foreign constitutions be adopted as “binding” precedents in the interpretation of the U.S. Constitution by American courts, the Supreme Court in particular. Actually, even the use of “Foreign Precedents in Constitutional Litigation” (General Reporter's choice) as mere persuasive authority is very inconsistent and somewhat superficial. The reason might be that “when it comes to the Constitution, federal courts are limited to materials that derive from the American legal system” and that “the federal courts should have no recourse to foreign decisions” (Julian Ku and John Yoo)


62 Am. J. Comp. L. 515 (2014)

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