DHTML Menu, (c)2004 Apycom
image
spacer
spacerbulletspacerPirate's Talebullet

Editorial

Legally Speaking



shickich1011
shadow
(click for larger version)
10/01/2011 - American law is, by international standards, a series of innovations and exceptions. This is the last in a series of articles this year that has examined commonplace aspects of the American justice system that are unique in the world.

Adam Liptak originally researched and published these articles in 2007 and 2008. With permission from The Wall Street Journal, Mr. Liptak's articles have been edited for space, and we have tried to update his reports with recent statistics or rulings that may have changed the law since the articles were first published.

I hope these articles have sparked some conversation around your workplace and home.

******************************************************************************

AMERICAN EXCEPTION U.S. Court Guides Fewer Nations

By Adam Liptak, The Wall Street Journal, September 18, 2008

WASHINGTON — Judges around the world have long looked to the decisions of the

United States Supreme Court for guidance, citing and often following them in hundreds of their own rulings since the Second World War. But now American legal influence is waning.

An analysis by the New York Times found that from 1990 through 2002, the Canadian Supreme Court cited decisions of the United States Supreme Court about a dozen times a year. But, from 2003 through 2008, the annual citation rate fell by half. Australian state supreme courts cited American decisions 208 times in 1995, according to a study by an Australian economist. By 2005, the number had fallen to 72.

Twenty years ago, said Anthony Lester, a British barrister, the landmark decisions of the court were "studied with as much attention in New Delhi or Strasbourg as they are in Washington, D.C."

That is partly because the foundational legal documents of many of the world's leading democracies are of quite recent vintage. The Indian Constitution was adopted in 1949, the Canadian Charter of Rights and Freedoms in 1982, the New Zealand Bill of Rights in 1990 and the South African Constitution in 1996. All drew on American constitutional principles.

Particularly at first, courts in those nations relied on the constitutional jurisprudence of the United States Supreme Court, both because it was relevant and because it was essentially the only game in town. These days, foreign courts in developed democracies often cite the rulings of the European Court of Human Rights in cases concerning equality, liberty and prohibitions against cruel treatment.

While US judicial influence may be waning, there is also an intense and growing debate about whether US court decisions should cite foreign law.

Justice Sandra Day O'Connor, in a speech before her retirement from the Supreme Court, advocated taking as well as giving. "I suspect that with time we will rely increasingly on international and foreign law in resolving what now appear to be domestic issues," she said.

The controversy over the citation of foreign law in American courts is freighted with misconceptions. One is that the practice is somehow new or unusual. The other is that to cite a foreign decision is to be bound by it.

Indeed, American judges cite all sorts of things in their decisions — law review articles, song lyrics, television programs. State supreme courts cite decisions from other states, though a decision from Wisconsin is no more binding in Oregon than is one from Italy.

"Foreign opinions are not authoritative; they set no binding precedent for the U.S. judge," Justice Ruth Bader Ginsburg said in a 2006 address to the Constitutional Court of South Africa. "But they can add to the story of knowledge relevant to the solution of trying questions."

However, in a 2006 article in the Boston University Law Review, Professor Steven Calabresi concluded that the Supreme Court should be wary of citing foreign law in most constitutional cases because the United States is exceptional. "Like it or not," he wrote, "Americans really are a special people with a special ideology that sets us apart."

******************************************************************************

Nothing in this article should be construed as legal advice. You must consult with an attorney for the application of the law to your specific circumstances.

R. Michael Shickich is the founder of the Injury Law Firm located in Casper. The focus of his practice is personal injury and wrongful death cases.

The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer's credentials and ability, and not rely upon advertisements or self-proclaimed expertise.

Site Search


Home Page
bulletBusiness Spotlight
bulletThe Assassination - THE CONCLUSION!!!
bulletFamily Finance
bulletThe Assassination - Part IX
bulletTo Your Health
bulletThe Assassination - Part VIII
bulletLawn and Garden
bulletThe Assassination - Part VII
bulletPoet's Corner
bulletThe Assassination - Part VI
bulletSafety Pro
bulletThe Assassination - Part V
bulletAround Our Town: Wyoming Medical Center
bulletThe Assassination - Part IV
bulletCover Family
Extras
email e-mail this article link to a friend
letters letter to the editor about this article
print print this article
facebook facebook
twitter twitter
digg digg it
share share
font size Larger | Smaller

307 Orthodontics

Highland Park Community Church

Envision Electric

Grapevine Design and Secretarial
Thanks for visiting Our Town Casper
Questions or Comments? Email us here.