It appears that it is not only the EU whose authority is fading. Today’s NY Times has a very interesting story on the influence of the US Supreme Court, which is well worth a read. The article states that the number of citations of US Supreme Court cases in other jurisdictions is in decline compared to just ten years ago. There are many reasons for this, according to, inter alia, Thomas Ginsburg of University of Chicago and Aharon Barak, former president of the Israeli Supreme Court. One reason is the rise in the numbers of constitutional courts elsewhere, which has, through time, created a rich jurisprudence on constitutional law rendering the need to cite US cases less essential. Additionally, US foreign policy may play a part in the diminishing influence of the oldest constitutional court in world. Finally, the reluctance of the US Supreme Court itself to cite foreign law when adjudicating may play a role. This final point is perhaps the most interesting. Whereas European (including the ECJ and the ECtHR), Australian and Canadian courts do not shy away from referring to foreign law, it has always been a sensitive topic in the US where many scholars favour leaving aside foreign law. This approach has its clear democratic justification but as Justice Ruth Bader Ginsberg said in 2006 in an address to the South African Constitutional Court:
“[F]oreign opinions are not authoritative; they set no binding precedent for the U.S. judge. But they can add to the store of knowledge relevant to the solution of trying questions. Yes, we should approach foreign legal materials with sensitivity to our differences, deficiencies, and imperfect understanding, but imperfection, I believe, should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey.”
For different takes on today’s story see also Michael Stokes Paulson on Balkinzation and Brian Leiter’s Law Prof blog.
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