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September 19, 2008

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I wonder if this too has to do with the fact that increasingly, everything of consequence is being decided by 5-4 splits, with strong dissents, which, I'd imagine, makes the statements less forceful than more decisive decisions.

Also, bonus points any time you can work Belle & Sebastian into a post title.

Micah, your comment reminds of this recent LFG post about Scalia's position on one 7-2 decision and why that probably isn't applicable to another 7-2 decision. Funny, that.

Republicanism : Make a new cult every day to suit your affairs

Not "Little Footballs, Green," but LGM.

Make a new cult every day to suit your affairs

The Sarah Palin version appears to be going pop.

But when she's on her back
She had the knowledge
To get her into college

Friday isn't Friday without a B&S reference. My hat is off to you, Good Sir.

The Belle & Sebastian reference caught me completely off guard. Other people listen to them too? Who knew?

I've actually seen them live twice.

For one of the shows, the New Pornographers opened up.

Happy times.

"It's simple cause and effect: when the Supreme Court is packed with so-called conservative justices that seek to narrowly define individual rights at almost every turn (they're more reactionary than conservative), while acquiescing to a vast expansion of executive authority, the rest of the world will look elsewhere for inspiration and illumination. "

This isn't closely related to the story you quote even if true (and I think it would be pretty easy to argue that you are rhetorically broad-brushing rather than making an analyzable point).

It isn't quite "Dog bites man therefore you must agree with my politics..." But....

But for what you have: one of the reasons why court citations were high outside of the country is because we often dealt with the legal issues first. They can rely on their own precedent later. So on any given issue court citations are likely to be down once you get a little past the initial treatment. That is what we get for being litigious compared to everyone else.

As for human rights citations, the immediate cause of the change is that the European Court of Human Rights had a reboot in November 1998 and started taking on a vast number of new cases.

I've always thought the foreign citation of US Constitutional law was a little weird anyway from countries that didn't have the same Constitution, but maybe that is just me.

I've always thought the foreign citation of US Constitutional law was a little weird anyway from countries that didn't have the same Constitution, but maybe that is just me.

Hrm...not when they're working off the same philosophical foundations.

Cross country citations occur when there are broad principles at play. If judges seek to narrow the basis, then the likelihood will go down that other countries will cite, as the basis will be law-specific and thus country specific.

Hm Not sure if the original observation is good or bad in this light.

This isn't closely related to the story you quote even if true (and I think it would be pretty easy to argue that you are rhetorically broad-brushing rather than making an analyzable point).

Oh, I don't know. Other countries aren't quoting our decisions because they don't agree with our precedents. Not liberal, western democracies at least. That's what the story says.

As for human rights citations, the immediate cause of the change is that the European Court of Human Rights had a reboot in November 1998 and started taking on a vast number of new cases.

That, and the US Supreme Court has taken an increasingly narrow view of human rights. Why would they quote our decisions when they disagree with the outcomes? The European Court is considered better on human rights.

Yes, you cherry pick the cites to create the results you want. And they don't want to cherry pick some of ours lately because they want to have other outcomes. Ok.

And this means what exactly?

"Why would they quote our decisions when they disagree with the outcomes?"

This is very revealing about your understanding of how judicial law works. Conclusion first, rationalization later. That is exactly what I detest about modern jurisprudential ideas.

"The European Court is considered better on human rights."

Mostly by the European Court so that is rather reflexive.

"They don't like our stuff" isn't a very convincing argument to someone who doesn't think that everything Europeans do is neato. If you want to argue that some specific ruling is bad that's great. But "Europeans disagree with us" is pretty empty. They don't understand free speech very well in Canada or the UK but I don't think you'd accept that as an argument for eviscerating the 1st amendment either.

Yes, I did a triple take when I saw the headline. It sent old neurons abuzz.

Combining the best band in Scotland with the obvious idiocy of the SCOTUS should be a crime.

Mind you, so should torture, so I guess I'll just have to get in line...

They don't understand free speech very well in Canada or the UK

The hilarious thing about US free-speech absolutists is that they generally seem to have no problem whatsoever with the way speech is restricted in a myriad of ways in the real world. That goes from the restrictions imposed by corporate media ownership, to the way the MPAA can literally prevent movies from being distributed if they don't like them and finally the draconian restrictions that are often rather harshly enforced on the blogs they post their defenses of free speech on.

Shorter Scalia, et al.: Let's just ditch this "a decent respect to the opinions of mankind" crap, shall we?

"That goes from the restrictions imposed by corporate media ownership, to the way the MPAA can literally prevent movies from being distributed if they don't like them and finally the draconian restrictions that are often rather harshly enforced on the blogs they post their defenses of free speech on."

Geez, I have to say that I've rarely seen a more clear lack of understanding of what "free speech" means and how it works than this.

Corporate media concentrations are a bad thing, but have nothing whatever to do with governmental limitations on what one can say, which is what "free speech" is about.

Which is "speech free of governmental restrictions." Period, that's all.

The MPAA doesn't remotely prevent movies from being distributed: lots of films are released unrated, and lots of films are distributed in many channels without being rated, and I watch such films with considerable frequency. There's no right to have one's film distributed by a particular set of channels. (And I have a bunch of complaints about the MPAA, but they have nothing to do with free speech issues; they have to do with asinine notions the MPAA uses.)

No more than there's a right to march into people's living rooms, and demand to be listened to, or a right to have one's publications sold in a particular bookstore, or bought by a particular company, or read at a given venue, or any other non-existent right that might please someone or other.

And finally, blogs aren't agents of the government, and also have nothing whatever to do with "free speech." You really just don't understand the concept.

"Free speech" means that a government cannot restrict your speech, not that anyone has a right to compel others to listen to them. It's "freedom from government restrictsions on speech," not "freedom to compel others to listen to you."

You're free to regard that as an unimportant concept as much as you like, and if you misunderstand the concept, you misunderstand it, but if you just don't regard it as important, you don't get to redefine it to complain that it isn't what you'd like to pretend it is.

From 1990 through 2002, for instance, the Canadian Supreme Court cited decisions of the United States Supreme Court about a dozen times a year, an analysis by The New York Times found. In the six years since, the annual citation rate has fallen by half, to about six.

I'm not sure about cause and effect here.

The development of Canadian jurisprudence over the interpretation of our Charter (enacted in 1982) was at its apex in the 90s. As a result, it was natural to canvas other jurisdictions to see how they interpret such issues as arbitrary detention and lawful searches. Terry v. Ohio, was an obvious starting point on search incident to detention, for instance. But as Canadian jurisprudence on these issues has firmed up and become settled, there is less need to look elsewhere to see how interpret our Charter.

Anne-Marie Slaughter? The lover of the Iraq war? Glennzilla basically demolished her in a post a while back. Showed her to be the fraud she is. And she's complaining now? She's the type that used to give bipartisan cover to BushCo.

"Anne-Marie Slaughter? The lover of the Iraq war? Glennzilla basically demolished her in a post a while back. Showed her to be the fraud she is. And she's complaining now? She's the type that used to give bipartisan cover to BushCo."

She also helped the Sandinista government sue the U.S. in the International Court of Justice. She's done a lot of things; is the above all you know about her? If not, what's your point? That because you read some negative things about her, she's disqualified for life from ever being heard from? Or that therefore one of our great exports did not used to be constitutional law? That, in fact, it's a good thing that the U.S. Supreme Court is being quoted less, because she thinks it's a bad thing? Or what? What's your point?

The blogosphere has a wonderful tendency to give people two bits of information about someone with a lifelong career, and thus get them labeled in some people's minds as "good" or "bad," and thereafter they're either ritually praised or denounced, all for, often, twenty words of quote, or two or three acts out of forty-plus years of a career.

But maybe you know a lot more about her, in which case, though, why are you asking?

Well, thanks Gary for providing me with exhibit A, perfectly designed to prove my point, which was that arguing strictly de jure while ignoring or glossing over the actual, socio-economic realities governing free speech is at best ignorant, more likely hypocritical.

Such a position strikes me as extremely peculiar especially on a blog like this, where we spend a lot of time discussing how the democratic process, de jure guaranteed, has been undermined in countless ways. But I guess as long as nobody has been convicted of a crime for doing so, everything is just dandy.

By the way, I happen to be rather knowledgeable about these matters, I just have a different view, but thanks for, uhm, asking.

Ah, Free Speech. Isn't that something you are entitled to if you are in the right zone? A right to express your idea's unless you print them on a t-shirt and the people around you don't like it, so they make you either leave or take it off?

Wow Sebastian, you've convinced me.

Foreign courts aren't really turned off by the conservative, anti-rights turn of the last decade.

The statistics cited by the article don't mean a thing. The opinions of foreign jurists? Ditto. Because, well, you said so.

What was I thinking?

Mostly by the European Court so that is rather reflexive.

Just the European Court? Really? So, you're saying that courts in Latin America and, say, Canada still cite the SCOTUS more on rights issues?

Seems the article says otherwise about Canada, which is not in Europe.

"They don't like our stuff" isn't a very convincing argument to someone who doesn't think that everything Europeans do is neato. If you want to argue that some specific ruling is bad that's great.

Funny, I don't think everything Europeans do is neato either.

I am a lawyer, however, and I do think the bill of rights is pretty neato. And when the SCOTUS erodes civilian protections with regards to law enforcement and executive authority, I tend to think that's not so neato. And the rest of world is tending to agree.

This is not about Europe = good, US = bad. This is about the US ceding its leadership on human rights by appointing justices that take an increasingly narrow view of same.

To me, rights are neato.

I suppose you could ignore the statements of Canadians above that agree with what I said, or you could stick to your poorly sourced article.

"To me, rights are neato."

Well the ones that agree with your political philosophy anyway.

"Just the European Court? Really? So, you're saying that courts in Latin America and, say, Canada still cite the SCOTUS more on rights issues?"

You're quite good at making ridiculously expansive statements in the main post and then acting as if you made strictly limited ones when responding in the comments.

Your original statement was: "It's simple cause and effect: when the Supreme Court is packed with so-called conservative justices that seek to narrowly define individual rights at almost every turn (they're more reactionary than conservative), while acquiescing to a vast expansion of executive authority, the rest of the world will look elsewhere for inspiration and illumination."

If you want to edit your post to stop at the paragraph before that, you can act as if you were making a strictly limited point.

And you have not responded as to why you think a conclusions first, rationalizations second theory of law is so great. Either that or you mispoke.

Again. Noting that people disagree with us isn't a particularly interesting or illuminating argument. They disagree with us on free speech yet you wouldn't use that fact to argue that we ought to change our first amendment protections to conform with their idea of free speech.

Or would you? Do you believe that the fact that Europe and Canada and the UK all have much fewer protections of free speech than we do means that we should change our jurisprudence to reflect their understanding of free speech?

"The statistics cited by the article don't mean a thing. The opinions of foreign jurists? Ditto. Because, well, you said so."

If you don't want to engage, just don't. I talked about the statistics. Statistics can do a lot of things if properly massaged or if you ignore the things around them. If you don't want to talk about the issues I've raised that is fine, but pretending that I ignored them is just cheesy. I raised a number of points about the statistics which have been confirmed by others on the thread. Just restating your trust in the authority you cite without comment is weird in the face of that.

Noting that people disagree with us isn't a particularly interesting or illuminating argument. They disagree with us on free speech yet you wouldn't use that fact to argue that we ought to change our first amendment protections to conform with their idea of free speech.

Sebastian, of course democracies around the world have disagreed previously on various social issues such as censorship, prostitution, drug use, age of consent and so on. Or rather, they have each implemented different laws that suit their domestic sensibilities. This is nothing new.

However there used to be a broad consensus regarding human rights and specifically the prohibition of torture, at least de jure (never mind for the moment what some of these countries actually did in the backwaters of Africa or South America). If a country wanted to be part of the civilized world, it would try to adhere to this consensus, else it would be shunned.

What is new is that the US has actively and openly tried to undermine this legal consensus within the last 8 years and this has caused great concern among other nations and should be cause for concern within the US.

Sebastian,

Im interested how you interpret the European Convention on Human Rights and US Constitution. It is true that European jurisprudence grants more exceptions to free speech (especially in case of commercial speech and libel), but the European human rights law grants much wider protection of basic rights and is based on a wide base of written law, not case law. This means that the reasoning behind the European court cases is much less convoluted and easier to follow. In addition, the written law cannot be overturned at the whim of a couple of judges.

The written European rights law grants, just to name a few, the absolute protection of life, the right for education, and the right for marriage.

And for those who don't know what we're talking about:

Article 10. Freedom of Expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

"This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises."

What's the reasoning behind requiring cinemas to be licensed?

Broadcast spectrum is obviously limited, but there's no obvious -- at least to me -- reason why projecting light would need to be licensed. Why is that there?

Is this a correct copy of the current European Convention on Human Rights? Or is that out of date?

Sebastian,

What's weird to me is the fact that you think that the rest of the world isn't looking elsewhere for guidance on human rights when the SCOTUS dithers about habeas corpus, torture and other issues relating to search, seizure, etc.

Or that you would ascribe the statistical evidence to the mere establishment of a European competitor that European nations will follow. Some of the statistical drift might be due to that phenomenon, but is it the primary factor? Even if you combined that with divergence on free speech?

It's not just my political philosophy that places a value on the right to be free from torture. The right to trial. The right to counsel.

Those rights appeal to a wide swath of political philosophies. In theory, they're supposed to be every bit as valued by conservatives as liberals. Heck, many of the justices that are left defending these rights in the current (and prior) Supreme Courts were appointed by Republicans.

But that has changes with Thomas, Scalia, Alito and, to a somewhat lesser degree, Roberts.

The consensus in terms of Western democracies leaves us outside the mainstream, and leaves our courts justifying a retrograde position.

It's quite logical given those trends that the world's courts will look elsewhere for guidance on rights issues when we are moving in a regressive direction. That, to me, is a shame. I preferred it when we were leading by an example that inspired other nations' courts. When the way our courts handled difficult human rights issues in a way that other courts took as instructive.

They weren't just working backwards from conclusion to justification as you said. The way we struck the balance was itself instructive. The way we showed how sovereigns can and should respect their citizens, ditto.

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, said Harold Hongju Koh, the dean of the Yale Law School. In those areas, Dean Koh said, “they tend not to look to the rulings of the U.S. Supreme Court.”

Are you saying this is just a case of European courts looking to the European Court?

Really?

Seems an odd way to phrase that point then. They could have simply said "European courts" instaed of "foreign courts in developed democracies."

And they shouldn't have cited Canada and Australia then. Even if Canada is more comfortable citing its own precedence, that doesn't explain why they also cite the European Court.

This seems to fly in the face of the argument that the decline in citations is the result of European courts citing the European Court.

Justice Michael Kirby of the High Court of Australia said that his court no longer confined itself to considering English, Canadian and American law. “Now we will take information from the Supreme Court of India, or the Court of Appeal of New Zealand, or the Constitutional Court of South Africa,” he said in an interview published in 2001 in The Green Bag, a legal journal. “America” he added, “is in danger of becoming something of a legal backwater.”

Ditto New Zealand - which actually looks more to Canada in terms of civil rights decisions. Gay rights, too, is an area where we have been lagging behind the world.

"but the European human rights law grants much wider protection of basic rights and is based on a wide base of written law, not case law. This means that the reasoning behind the European court cases is much less convoluted and easier to follow. In addition, the written law cannot be overturned at the whim of a couple of judges."

I didn't write it so you might listen. But it seems rather pertinent.


But foreign courts aren't just citing the European Court. You might consider that.

Help me out here Sebastian, are you really arguing that the statistical trend in citations has nothing to do with the recent anti-rights shift of the SCOTUS?

Or are you saying that some of the statistical shift is due to unrelated factors?

If the latter, then I agree. If the former, then I disagree.

The evidence that you have mustered thus far does not prove the former. Especially in light of the very specific statements of foreign judges that explain their decision making process.

On the one hand, you say that European courts are looking more internally. This may be true, but then I pointed out that other non-European foreign courts are also looking elsewhere.

You brought up different views on free speech as an explanation, and the fact that Canada doesn't need to look elsewhere as much as a response.

But the study in question was not discussing free speech in any significant way, and Canada's court is still citing foreign courts - just not the US as much any more.

Are there any other arguments that you are making that you think I am ignoring?

"Help me out here Sebastian, are you really arguing that the statistical trend in citations has nothing to do with the recent anti-rights shift of the SCOTUS?

Or are you saying that some of the statistical shift is due to unrelated factors?

If the latter, then I agree. If the former, then I disagree."

I'm saying that neither of us have the remotest idea why there may be fewer cites, and in fact I'm not even sure that the statistics are particularly good enough as quoted to be sure there even is such a decline.

Further, since the number of cited cases isn't typically heavy on human rights in the sense of the cases leading up to Hamdan or whatever you're thinking of as nasty human rights rulings, the premise that such rulings are the problem seems rather odd.

"The evidence that you have mustered thus far does not prove the former. Especially in light of the very specific statements of foreign judges that explain their decision making process."

In a VERY few cases. Like a statistically insignificant number of cases (two if I'm reading it right). Which is rather important when you want to invoke the statistics hammer on me.

"You brought up different views on free speech as an explanation, and the fact that Canada doesn't need to look elsewhere as much as a response."

Huh? That isn't what I said at all:

Noting that people disagree with us isn't a particularly interesting or illuminating argument. They disagree with us on free speech yet you wouldn't use that fact to argue that we ought to change our first amendment protections to conform with their idea of free speech.

Or would you? Do you believe that the fact that Europe and Canada and the UK all have much fewer protections of free speech than we do means that we should change our jurisprudence to reflect their understanding of free speech?

Normally I would blame myself for not being clear, but Gary got it and frankly the point is rather clear. I mention free speech because it is an area of difference where you wouldn't believe that merely citing the difference proves we are doing something wrong. Or maybe you do believe that. You still haven't answered.

"...and Canada's court is still citing foreign courts - just not the US as much any more."

Whoa, were did you get this one? The study didn't say that about citing other foreign courts more than they used to. That isn't my impression at all, nor is it the understanding of the Canadian who commented on the thread.

Also the study on Australia notes that all foreign citations have been falling. A fact which should be at least somethat problematic for your thesis.

Scott Lemieux comments.

The study didn't say that about citing other foreign courts more than they used to.

Nor did I. The quote you cited doesn't make that allegation.

in fact I'm not even sure that the statistics are particularly good enough as quoted to be sure there even is such a decline

Care to elaborate on this? The statistics do indicate a decline. Why do you disagree with that?

As for free speech: No I don't think we should conform to their conception of free speech. Just their (and our former) positions on habeas corpus, torture, right to counsel and other individual protections vis-a-vis law enforcement and the executive branch.

There will always be some areas of divergence. That's fine. But habeas corpus? That's kind of a biggie, and long established norm that I'd just as soon not see abandoned. Was a time when conservatives would have been just as protective. Where have you gone?

Further, since the number of cited cases isn't typically heavy on human rights in the sense of the cases leading up to Hamdan or whatever you're thinking of as nasty human rights rulings, the premise that such rulings are the problem seems rather odd.

It's not just the rulings themselves per se, but the damage to the credibility of the court caused by such rulings. That leads to a general aversion to cite the SCOTUS. That is an attitude expressed by the Israeli judge in the article, and other judges cited in the article. This is what they are actually saying, so it does take some of the guesswork out of it.

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