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Is the U.S. Legal System Closed-off?

bsh1
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10/4/2015 10:42:33 PM
Posted: 1 year ago
I recently read something in an article which piqued my interest:

"The problem is that the trade in legal ideas is not a two-way trade. American ideas are for export, and there's very little effort in the U.S. legal system to import ideas. With respect to constitutional issues involving human rights, it's virtually impossible to persuade a majority of the U.S. Supreme Court to look at case law from other countries. The political and legal influence of the United States has been profound in favor of human rights around the world. American ideas have inspired the rest of the world. But jurists in the U.S. are not ready to be inspired by others." [http://www.theatlantic.com...]

Is the U.S. legal system elitist or closed-off to new ideas? And, if were are or aren't, is this a good thing? Should we places such emphasis on exporting our ideas over importing other ideas, or should be pursuing a kind of legal isolationism? I'd be interested to here your thoughts.
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Greyparrot
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10/4/2015 11:13:26 PM
Posted: 1 year ago
At 10/4/2015 10:42:33 PM, bsh1 wrote:
I recently read something in an article which piqued my interest:

"The problem is that the trade in legal ideas is not a two-way trade. American ideas are for export, and there's very little effort in the U.S. legal system to import ideas. With respect to constitutional issues involving human rights, it's virtually impossible to persuade a majority of the U.S. Supreme Court to look at case law from other countries. The political and legal influence of the United States has been profound in favor of human rights around the world. American ideas have inspired the rest of the world. But jurists in the U.S. are not ready to be inspired by others." [http://www.theatlantic.com...]

Is the U.S. legal system elitist or closed-off to new ideas? And, if were are or aren't, is this a good thing? Should we places such emphasis on exporting our ideas over importing other ideas, or should be pursuing a kind of legal isolationism? I'd be interested to here your thoughts.

Laws based on different cultures should be neither exported, nor imported.
bsh1
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10/4/2015 11:49:03 PM
Posted: 1 year ago
At 10/4/2015 11:13:26 PM, Greyparrot wrote:
At 10/4/2015 10:42:33 PM, bsh1 wrote:
I recently read something in an article which piqued my interest:

"The problem is that the trade in legal ideas is not a two-way trade. American ideas are for export, and there's very little effort in the U.S. legal system to import ideas. With respect to constitutional issues involving human rights, it's virtually impossible to persuade a majority of the U.S. Supreme Court to look at case law from other countries. The political and legal influence of the United States has been profound in favor of human rights around the world. American ideas have inspired the rest of the world. But jurists in the U.S. are not ready to be inspired by others." [http://www.theatlantic.com...]

Is the U.S. legal system elitist or closed-off to new ideas? And, if were are or aren't, is this a good thing? Should we places such emphasis on exporting our ideas over importing other ideas, or should be pursuing a kind of legal isolationism? I'd be interested to here your thoughts.

Laws based on different cultures should be neither exported, nor imported.

I don't think that makes sense. Just because nations have different legal systems doesn't mean there aren't things in common or shared values. If nation X has a good idea, why should nation Y reject it out of hand because of it's foriegness. It seems smart to compare notes.
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Greyparrot
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10/5/2015 12:06:03 AM
Posted: 1 year ago
At 10/4/2015 11:49:03 PM, bsh1 wrote:
At 10/4/2015 11:13:26 PM, Greyparrot wrote:
At 10/4/2015 10:42:33 PM, bsh1 wrote:
I recently read something in an article which piqued my interest:

"The problem is that the trade in legal ideas is not a two-way trade. American ideas are for export, and there's very little effort in the U.S. legal system to import ideas. With respect to constitutional issues involving human rights, it's virtually impossible to persuade a majority of the U.S. Supreme Court to look at case law from other countries. The political and legal influence of the United States has been profound in favor of human rights around the world. American ideas have inspired the rest of the world. But jurists in the U.S. are not ready to be inspired by others." [http://www.theatlantic.com...]

Is the U.S. legal system elitist or closed-off to new ideas? And, if were are or aren't, is this a good thing? Should we places such emphasis on exporting our ideas over importing other ideas, or should be pursuing a kind of legal isolationism? I'd be interested to here your thoughts.

Laws based on different cultures should be neither exported, nor imported.

I don't think that makes sense. Just because nations have different legal systems doesn't mean there aren't things in common or shared values. If nation X has a good idea, why should nation Y reject it out of hand because of it's foriegness. It seems smart to compare notes.

And who decides which laws are and are not uniquely culture based?
bsh1
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10/5/2015 12:07:45 AM
Posted: 1 year ago
At 10/5/2015 12:06:03 AM, Greyparrot wrote:
At 10/4/2015 11:49:03 PM, bsh1 wrote:
At 10/4/2015 11:13:26 PM, Greyparrot wrote:
At 10/4/2015 10:42:33 PM, bsh1 wrote:
I recently read something in an article which piqued my interest:

"The problem is that the trade in legal ideas is not a two-way trade. American ideas are for export, and there's very little effort in the U.S. legal system to import ideas. With respect to constitutional issues involving human rights, it's virtually impossible to persuade a majority of the U.S. Supreme Court to look at case law from other countries. The political and legal influence of the United States has been profound in favor of human rights around the world. American ideas have inspired the rest of the world. But jurists in the U.S. are not ready to be inspired by others." [http://www.theatlantic.com...]

Is the U.S. legal system elitist or closed-off to new ideas? And, if were are or aren't, is this a good thing? Should we places such emphasis on exporting our ideas over importing other ideas, or should be pursuing a kind of legal isolationism? I'd be interested to here your thoughts.

Laws based on different cultures should be neither exported, nor imported.

I don't think that makes sense. Just because nations have different legal systems doesn't mean there aren't things in common or shared values. If nation X has a good idea, why should nation Y reject it out of hand because of it's foriegness. It seems smart to compare notes.

And who decides which laws are and are not uniquely culture based?

I think that is something for our judicial branch to cope with. I think the point of the article is that courts in Europe have American ideas exported to them, whereas our courts are entirely unwilling to entertain European ideas, regardless of how good they may be.
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TN05
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10/5/2015 12:31:09 AM
Posted: 1 year ago
At 10/4/2015 10:42:33 PM, bsh1 wrote:
I recently read something in an article which piqued my interest:

"The problem is that the trade in legal ideas is not a two-way trade. American ideas are for export, and there's very little effort in the U.S. legal system to import ideas. With respect to constitutional issues involving human rights, it's virtually impossible to persuade a majority of the U.S. Supreme Court to look at case law from other countries. The political and legal influence of the United States has been profound in favor of human rights around the world. American ideas have inspired the rest of the world. But jurists in the U.S. are not ready to be inspired by others." [http://www.theatlantic.com...]

Is the U.S. legal system elitist or closed-off to new ideas? And, if were are or aren't, is this a good thing? Should we places such emphasis on exporting our ideas over importing other ideas, or should be pursuing a kind of legal isolationism? I'd be interested to here your thoughts.

The reason jurists do not use foreign law to interpret ours is that the supreme law of our land is the Constitution, not the Constitution of other countries. Good ideas can be passed through the legislative system, which is what is supposed to legislate anyway.

This is a fundamentally sound principle, and one I think conservatives and liberals would accept - it keeps government responsive to the interests of the people it represents. Basing court rulings off of the laws of other countries robs the people of representative government.
Greyparrot
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10/5/2015 12:36:37 AM
Posted: 1 year ago
Exporting laws is no different than any other forced culture assimilation, such as the case of forcing democracy to the Middle East, despite the culture mismatches. Only a narcissistic bully would export, and only a weak stooge would import.
bsh1
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10/5/2015 12:38:07 AM
Posted: 1 year ago
At 10/5/2015 12:31:09 AM, TN05 wrote:
At 10/4/2015 10:42:33 PM, bsh1 wrote:
I recently read something in an article which piqued my interest:

"The problem is that the trade in legal ideas is not a two-way trade. American ideas are for export, and there's very little effort in the U.S. legal system to import ideas. With respect to constitutional issues involving human rights, it's virtually impossible to persuade a majority of the U.S. Supreme Court to look at case law from other countries. The political and legal influence of the United States has been profound in favor of human rights around the world. American ideas have inspired the rest of the world. But jurists in the U.S. are not ready to be inspired by others." [http://www.theatlantic.com...]

Is the U.S. legal system elitist or closed-off to new ideas? And, if were are or aren't, is this a good thing? Should we places such emphasis on exporting our ideas over importing other ideas, or should be pursuing a kind of legal isolationism? I'd be interested to here your thoughts.

The reason jurists do not use foreign law to interpret ours is that the supreme law of our land is the Constitution, not the Constitution of other countries.

Sure, but I would respond to you as I did to Greyparrot. Obviously there are differences between our legal system and other legal systems. But, interpretation of a document is always subjective, and wording is often vague. Other legal systems may have interesting case law on topics relevant to our legal system which could be applied here without breaching our Constitution. Outside ideas could also inform how we should understand the document; innovations in jurisprudence abroad can obviously reflect on how any legal document anywhere can be understood, as with questions like "what is free speech," or "what is privacy," etc.

Good ideas can be passed through the legislative system, which is what is supposed to legislate anyway.

Why can't new ideas be introduced in any branch? Saying that only one branch can have new thinking is, frankly, silly.

This is a fundamentally sound principle, and one I think conservatives and liberals would accept - it keeps government responsive to the interests of the people it represents. Basing court rulings off of the laws of other countries robs the people of representative government.

Using this logic, you should just abolish judicial supremacy and invest supremacy in the legislature.
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bsh1
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10/5/2015 12:53:45 AM
Posted: 1 year ago
At 10/5/2015 12:36:37 AM, Greyparrot wrote:
Exporting laws is no different than any other forced culture assimilation, such as the case of forcing democracy to the Middle East, despite the culture mismatches. Only a narcissistic bully would export, and only a weak stooge would import.

Not really. I assume you've heard of the free market theory of free speech. Essentially, this idea suggests that knowledge is gained through exchange of information and debate. It's similar to Hegel's dialect in a way. There is an old idea X, and people suggest new ideas A, B, and C. We debate these ideas, possibly test and analyze them, and then replace X with the best idea. However, when old ideas remain unchallenged, or when only a few new ideas are allowed to be heard and debated, the search for knowledge and improvement is inhibited.

The Export-Import dynamic is simply a reflection of this process. Countries not only suggest new ideas within themselves, but get them from other places. Having collected as many good ideas as possible, debate and analysis can take place on those ideas, and the best idea can replace the old model if that idea is better than the old model. By actively allowing as many ideas as possible to enter the debate, you increase the probability that the best solution will be among the set of ideas under discussion.
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"Twilight isn't just about obtuse metaphors between cannibalism and premarital sex, it also teaches us the futility of hope." - Raisor

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Greyparrot
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10/5/2015 12:57:34 AM
Posted: 1 year ago
To be clear, I really don't see anything wrong with cultural Darwinism and the import and export of culture based laws. The death of cultures is an emotional issue for most people. If Sharia law is superior, then the US will have to incorporate it, no matter what the polls say.
Vox_Veritas
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10/5/2015 2:39:23 AM
Posted: 1 year ago
While in theory we should be more open to outside suggestions, in practice this will almost certainly take the form of "Above the death penalty", "put heavier environmental regulations on businesses", "outlaw private ownership of firearms", and so on.
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Skepsikyma
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10/5/2015 3:39:08 AM
Posted: 1 year ago
At 10/4/2015 10:42:33 PM, bsh1 wrote:
I recently read something in an article which piqued my interest:

"The problem is that the trade in legal ideas is not a two-way trade. American ideas are for export, and there's very little effort in the U.S. legal system to import ideas. With respect to constitutional issues involving human rights, it's virtually impossible to persuade a majority of the U.S. Supreme Court to look at case law from other countries. The political and legal influence of the United States has been profound in favor of human rights around the world. American ideas have inspired the rest of the world. But jurists in the U.S. are not ready to be inspired by others." [http://www.theatlantic.com...]

Is the U.S. legal system elitist or closed-off to new ideas? And, if were are or aren't, is this a good thing? Should we places such emphasis on exporting our ideas over importing other ideas, or should be pursuing a kind of legal isolationism? I'd be interested to here your thoughts.

I fundamentally violates the purpose of the courts, which is to act as a stabilizing factor in our government. The courts should follow their own precedents, or reference them, to the exclusion of other international legal opinions because the entire point of the institution is to bind the law to the will of the People (represented by the Constitution). It's a tether, not a yoke, and to overturn that would unbalance American government severely in favor of progression. If other people want to use our judiciary rulings as precedent, they can be my guest; it certainly doesn't obligate us to use theirs.
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thett3
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10/5/2015 3:48:44 AM
Posted: 1 year ago
Uhh...the literal point of case law is to be a body of established precedent. Looking at case law from other countries would be utterly stupid unless we combine our legal systems with that nation so that our precedents can't conflict...in which case we just annexed them.

If you look at precedents from other jurisdictions, the entire purpose of case law goes out the window. Granted I only read the little snippet of the article you posted but I literally can't imagine how the courts would apply precedent from other countries. "We hold that X is a violation of the defendants due process rights because the ruling handed down July 10th, 20xx from the European Commission on Human Rights". Screw that
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Greyparrot
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10/5/2015 11:33:16 AM
Posted: 1 year ago
At 10/5/2015 12:57:34 AM, Greyparrot wrote:
To be clear, I really don't see anything wrong with cultural Darwinism and the import and export of culture based laws. The death of cultures is an emotional issue for most people. If Sharia law is superior, then the US will have to incorporate it, no matter what the polls say.

I mean, I don't see anything wrong with the inevitable assimilation of all cultures into one unified global entity with similar laws in the far future, but forcing this process quickly will invariably lead to violence and bloodshed as people fight for the survival of their culture. Just ask any conservative about the glories of Sharia law as one easy to spot example......ask any black about the whitification of their neighborhoods and their education. This is a very sensitive topic for most people.
TN05
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10/5/2015 4:58:50 PM
Posted: 1 year ago
At 10/5/2015 12:38:07 AM, bsh1 wrote:
At 10/5/2015 12:31:09 AM, TN05 wrote:
At 10/4/2015 10:42:33 PM, bsh1 wrote:
I recently read something in an article which piqued my interest:

"The problem is that the trade in legal ideas is not a two-way trade. American ideas are for export, and there's very little effort in the U.S. legal system to import ideas. With respect to constitutional issues involving human rights, it's virtually impossible to persuade a majority of the U.S. Supreme Court to look at case law from other countries. The political and legal influence of the United States has been profound in favor of human rights around the world. American ideas have inspired the rest of the world. But jurists in the U.S. are not ready to be inspired by others." [http://www.theatlantic.com...]

Is the U.S. legal system elitist or closed-off to new ideas? And, if were are or aren't, is this a good thing? Should we places such emphasis on exporting our ideas over importing other ideas, or should be pursuing a kind of legal isolationism? I'd be interested to here your thoughts.

The reason jurists do not use foreign law to interpret ours is that the supreme law of our land is the Constitution, not the Constitution of other countries.

Sure, but I would respond to you as I did to Greyparrot. Obviously there are differences between our legal system and other legal systems. But, interpretation of a document is always subjective, and wording is often vague. Other legal systems may have interesting case law on topics relevant to our legal system which could be applied here without breaching our Constitution.

This is the sort of problem you run into when you reject textualism or originalism (which isn't necessarily conservative. Akhil Amar is a very liberal originalist judge.). They may have novel interpretations of their own laws, but how is that relevant to ours?

To give an example, hate speech laws. Many countries have them. We don't. The people who wrote the First Amendment explicitly rejected the idea of government deciding what speech is or isn't okay. Why should we reject their intent, and instead decide it means something completely different because a Swiss judge interpreted their law to mean something different? That doesn't make a whole lot of sense. Not only does it go against what the people who wrote it meant, it also denies the people the right to control their own laws.

Outside ideas could also inform how we should understand the document; innovations in jurisprudence abroad can obviously reflect on how any legal document anywhere can be understood, as with questions like "what is free speech," or "what is privacy," etc.

Good ideas can be passed through the legislative system, which is what is supposed to legislate anyway.

Why can't new ideas be introduced in any branch? Saying that only one branch can have new thinking is, frankly, silly.

The President certainly can propose ideas, so can Congress and the court for that matter. However, judges can't actually impose their ideas from the bench. Their job is to interpret law, not make it. That is the exclusive right of the legislative branch. Separation of powers is a big difference between our legal system and many other legal systems.

This is a fundamentally sound principle, and one I think conservatives and liberals would accept - it keeps government responsive to the interests of the people it represents. Basing court rulings off of the laws of other countries robs the people of representative government.

Using this logic, you should just abolish judicial supremacy and invest supremacy in the legislature.

The legislature has the power to make laws, yes, provided they adhere to the constitution. The court has the power to interpret them and determine if they adhere to the constitution - ours, not that of other countries.
bsh1
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10/5/2015 7:29:47 PM
Posted: 1 year ago
At 10/5/2015 4:58:50 PM, TN05 wrote:
At 10/5/2015 12:38:07 AM, bsh1 wrote:
At 10/5/2015 12:31:09 AM, TN05 wrote:
At 10/4/2015 10:42:33 PM, bsh1 wrote:
I recently read something in an article which piqued my interest:

"The problem is that the trade in legal ideas is not a two-way trade. American ideas are for export, and there's very little effort in the U.S. legal system to import ideas. With respect to constitutional issues involving human rights, it's virtually impossible to persuade a majority of the U.S. Supreme Court to look at case law from other countries. The political and legal influence of the United States has been profound in favor of human rights around the world. American ideas have inspired the rest of the world. But jurists in the U.S. are not ready to be inspired by others." [http://www.theatlantic.com...]

Is the U.S. legal system elitist or closed-off to new ideas? And, if were are or aren't, is this a good thing? Should we places such emphasis on exporting our ideas over importing other ideas, or should be pursuing a kind of legal isolationism? I'd be interested to here your thoughts.

The reason jurists do not use foreign law to interpret ours is that the supreme law of our land is the Constitution, not the Constitution of other countries.

Sure, but I would respond to you as I did to Greyparrot. Obviously there are differences between our legal system and other legal systems. But, interpretation of a document is always subjective, and wording is often vague. Other legal systems may have interesting case law on topics relevant to our legal system which could be applied here without breaching our Constitution.

This is the sort of problem you run into when you reject textualism or originalism (which isn't necessarily conservative. Akhil Amar is a very liberal originalist judge.). They may have novel interpretations of their own laws, but how is that relevant to ours?

Let's use a broad, rather than a specific example, to answer your question. I am not going to get into a debate on textualism (though I think it's a silly approach to take), so I'll focus on your last question. Suppose the court were considering if "X" counted as free speech. They can look at similar rulings from other countries to see what approaches those courts took in determining whether X (pornography, flag burning, campaign donations, etc.) was speech. Obviously, not all foreign rulings are going to jive with our legal system, but some of those rulings might offer interesting perspectives that are not necessarily in conflict with our legal system which could inform our justices. Perhaps these courts provided especially compelling theoretic arguments for why money isn't speech, for example. Nothing in our Constitution specifies what speech is, and so it is a theoretical issue on which different theoretic approaches can be exchanged.

Good ideas can be passed through the legislative system, which is what is supposed to legislate anyway.

Why can't new ideas be introduced in any branch? Saying that only one branch can have new thinking is, frankly, silly.

The President certainly can propose ideas, so can Congress and the court for that matter. However, judges can't actually impose their ideas from the bench. Their job is to interpret law, not make it.

Borrowing ideas isn't the same as imposing ideas. Why can't judges look at novel ways to interpret things? Again, see the example of free speech. That is an issue of interpretation, but justices can still benefit from an exchange of ideas.

This is a fundamentally sound principle, and one I think conservatives and liberals would accept - it keeps government responsive to the interests of the people it represents. Basing court rulings off of the laws of other countries robs the people of representative government.

Using this logic, you should just abolish judicial supremacy and invest supremacy in the legislature.

The legislature has the power to make laws, yes, provided they adhere to the constitution. The court has the power to interpret them and determine if they adhere to the constitution - ours, not that of other countries.

You're assuming I want justices to adopt approaches that violate our constitution. That would be wrong. Not all ideas proposed in foreign courts are going to violate our Constitution, and not all court cases are constitutional.
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bsh1
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10/5/2015 7:32:05 PM
Posted: 1 year ago
At 10/5/2015 3:39:08 AM, Skepsikyma wrote:
At 10/4/2015 10:42:33 PM, bsh1 wrote:
I recently read something in an article which piqued my interest:

"The problem is that the trade in legal ideas is not a two-way trade. American ideas are for export, and there's very little effort in the U.S. legal system to import ideas. With respect to constitutional issues involving human rights, it's virtually impossible to persuade a majority of the U.S. Supreme Court to look at case law from other countries. The political and legal influence of the United States has been profound in favor of human rights around the world. American ideas have inspired the rest of the world. But jurists in the U.S. are not ready to be inspired by others." [http://www.theatlantic.com...]

Is the U.S. legal system elitist or closed-off to new ideas? And, if were are or aren't, is this a good thing? Should we places such emphasis on exporting our ideas over importing other ideas, or should be pursuing a kind of legal isolationism? I'd be interested to here your thoughts.

I fundamentally violates the purpose of the courts, which is to act as a stabilizing factor in our government. The courts should follow their own precedents, or reference them, to the exclusion of other international legal opinions because the entire point of the institution is to bind the law to the will of the People (represented by the Constitution). It's a tether, not a yoke, and to overturn that would unbalance American government severely in favor of progression. If other people want to use our judiciary rulings as precedent, they can be my guest; it certainly doesn't obligate us to use theirs.

I think you're misunderstanding what I am proposing. I am not suggesting we tie our legal system to precedents set in other courts. I am suggesting that other courts have interesting ideas as to how to interpret ideas, words, etc. and that, by closing ourselves off to these ideas, we potentially deny ourselves access to some potentially better ways to interpreting things. See my response to TN05.
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bsh1
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10/5/2015 7:34:50 PM
Posted: 1 year ago
At 10/5/2015 3:48:44 AM, thett3 wrote:
If you look at precedents from other jurisdictions, the entire purpose of case law goes out the window. Granted I only read the little snippet of the article you posted but I literally can't imagine how the courts would apply precedent from other countries. "We hold that X is a violation of the defendants due process rights because the ruling handed down July 10th, 20xx from the European Commission on Human Rights". Screw that

You're totally misunderstanding what I am suggesting. Obviously, decisions of foreign courts are not legally binding here, nor should they be (unless it's something treaty-linked, which is a limited exception).

What I am suggesting is not the RULINGS be cross-applied, but that IDEAS be cross-applied. See my free speech example in my 2nd response to TN05.
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thett3
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10/5/2015 7:52:27 PM
Posted: 1 year ago
At 10/5/2015 7:34:50 PM, bsh1 wrote:
At 10/5/2015 3:48:44 AM, thett3 wrote:
If you look at precedents from other jurisdictions, the entire purpose of case law goes out the window. Granted I only read the little snippet of the article you posted but I literally can't imagine how the courts would apply precedent from other countries. "We hold that X is a violation of the defendants due process rights because the ruling handed down July 10th, 20xx from the European Commission on Human Rights". Screw that

You're totally misunderstanding what I am suggesting. Obviously, decisions of foreign courts are not legally binding here, nor should they be (unless it's something treaty-linked, which is a limited exception).

What I am suggesting is not the RULINGS be cross-applied, but that IDEAS be cross-applied. See my free speech example in my 2nd response to TN05.

You didn't suggest anything. You cited from an article that lamented the refusal of US courts to recognize CASE LAW from other countries...it's perfectly reasonable to assume that case law means case law not "This idea is nice, let's copy it".

You say that no foreign ideas ever come into US legal jurisprudence, or at least that they do so very slowly. I'd like to see some evidence that. Supreme Court rulings *do* reference rulings from other countries from time to time, however this is rare because of the nature of judicial law and its emphasis on jurisdiction. I'm really not seeing any evidence that US courts are ignoring foreign opinions in any way that I should care about, foreign opinions can compete in the marketplace of ideas and foreign sources often do file amicus briefs.

I just got through reading your exchange with TN05, and I still don't really get what you're suggesting. How can a foreign "innovation in jurisprudence" POSSIBLY be relevant to US law? If we're to view the constitution and our body of law as some sort of contract, it's absolutely irrelevant what other contracts in other jurisdictions may or may not say and how that's interpreted. Maybe it could be slightly relevant in abstract philosophical questions like "what is free speech?" Problem is, that question has already been resolved.
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10/5/2015 7:57:20 PM
Posted: 1 year ago
At 10/5/2015 7:52:27 PM, thett3 wrote:
At 10/5/2015 7:34:50 PM, bsh1 wrote:
At 10/5/2015 3:48:44 AM, thett3 wrote:
If you look at precedents from other jurisdictions, the entire purpose of case law goes out the window. Granted I only read the little snippet of the article you posted but I literally can't imagine how the courts would apply precedent from other countries. "We hold that X is a violation of the defendants due process rights because the ruling handed down July 10th, 20xx from the European Commission on Human Rights". Screw that

You're totally misunderstanding what I am suggesting. Obviously, decisions of foreign courts are not legally binding here, nor should they be (unless it's something treaty-linked, which is a limited exception).

What I am suggesting is not the RULINGS be cross-applied, but that IDEAS be cross-applied. See my free speech example in my 2nd response to TN05.

You didn't suggest anything. You cited from an article that lamented the refusal of US courts to recognize CASE LAW from other countries...it's perfectly reasonable to assume that case law means case law not "This idea is nice, let's copy it".

I did in later posts, but when I read that I got the impression that the interviewee wanted the U.S. to take ideas from case law, and not to literally apply the case law of foreign countries. But, it doesn't really matter at this point.

You say that no foreign ideas ever come into US legal jurisprudence, or at least that they do so very slowly. I'd like to see some evidence that. Supreme Court rulings *do* reference rulings from other countries from time to time, however this is rare because of the nature of judicial law and its emphasis on jurisdiction.

Agreed.

I'm really not seeing any evidence that US courts are ignoring foreign opinions in any way that I should care about, foreign opinions can compete in the marketplace of ideas and foreign sources often do file amicus briefs.

My point is that I think we could benefit from being more open to foreign ideas. Sure, foreign ideas do trickle in, but, the most recent time the Supreme Court cited a ECHR ruling in its decision, I remember that is was Fox Headline News for like a day. We should not only be more open to accepting ideas from abroad, but we should also be less eager to villify the court for doing it, because I feel like both are issues. The Court should be open to all ideas, not just those filed in the forms of briefs or those very rarely cited foreign cases...that's my point.

I just got through reading your exchange with TN05, and I still don't really get what you're suggesting. How can a foreign "innovation in jurisprudence" POSSIBLY be relevant to US law?

I think my free speech discussion got into that a bit more.
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thett3
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10/5/2015 8:07:15 PM
Posted: 1 year ago
At 10/5/2015 7:57:20 PM, bsh1 wrote:
At 10/5/2015 7:52:27 PM, thett3 wrote:
At 10/5/2015 7:34:50 PM, bsh1 wrote:
At 10/5/2015 3:48:44 AM, thett3 wrote:
If you look at precedents from other jurisdictions, the entire purpose of case law goes out the window. Granted I only read the little snippet of the article you posted but I literally can't imagine how the courts would apply precedent from other countries. "We hold that X is a violation of the defendants due process rights because the ruling handed down July 10th, 20xx from the European Commission on Human Rights". Screw that

You're totally misunderstanding what I am suggesting. Obviously, decisions of foreign courts are not legally binding here, nor should they be (unless it's something treaty-linked, which is a limited exception).

What I am suggesting is not the RULINGS be cross-applied, but that IDEAS be cross-applied. See my free speech example in my 2nd response to TN05.

You didn't suggest anything. You cited from an article that lamented the refusal of US courts to recognize CASE LAW from other countries...it's perfectly reasonable to assume that case law means case law not "This idea is nice, let's copy it".

I did in later posts, but when I read that I got the impression that the interviewee wanted the U.S. to take ideas from case law, and not to literally apply the case law of foreign countries. But, it doesn't really matter at this point.

You say that no foreign ideas ever come into US legal jurisprudence, or at least that they do so very slowly. I'd like to see some evidence that. Supreme Court rulings *do* reference rulings from other countries from time to time, however this is rare because of the nature of judicial law and its emphasis on jurisdiction.

Agreed.

I'm really not seeing any evidence that US courts are ignoring foreign opinions in any way that I should care about, foreign opinions can compete in the marketplace of ideas and foreign sources often do file amicus briefs.

My point is that I think we could benefit from being more open to foreign ideas. Sure, foreign ideas do trickle in, but, the most recent time the Supreme Court cited a ECHR ruling in its decision, I remember that is was Fox Headline News for like a day. We should not only be more open to accepting ideas from abroad, but we should also be less eager to villify the court for doing it, because I feel like both are issues. The Court should be open to all ideas, not just those filed in the forms of briefs or those very rarely cited foreign cases...that's my point.

Here's the problem I'm seeing: There's a difference between *citing* a good foreign ruling and just accepting a good idea and making a ruling based off of that. US citizens are culturally steeped in centuries of English ideals of liberty and self government and taught a lot of propaganda pretty much from day one about the evils of foreign influence (think everything you were taught about the revolutionary war, ever). The Supreme Court is a political animal even if it pretends not to be. Lower courts don't even pretend. They're well aware of the fact that if they cite a lot of foreign cases to make controversial rulings the people will get fed up. What I'm not seeing is any evidence that the Supreme Court is ignoring good ideas...I mean really, how could they? How is that even possible, unless they're deliberately ignoring anything they hear regarding legal systems elsewhere.

What are all these great foreign ideas the courts aren't implementing? You mention free speech and I know your opinion on Europe's idea of "free" speech but we both know that the vast majority of Americans disagree and that includes the justices on the court. Your burden is to prove that American court rulings retaining a distinctly American flavor is the result of willful ignorance on the part of judges instead of just differences in opinions/culture. I'm just not seeing much evidence for the US being any more closed off than anybody else, and if it is it's worth noting that we historically spread a lot of our ideals through military force, not persuasion.


I just got through reading your exchange with TN05, and I still don't really get what you're suggesting. How can a foreign "innovation in jurisprudence" POSSIBLY be relevant to US law?

I think my free speech discussion got into that a bit more.
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: At 11/12/2016 11:49:40 PM, Raisor wrote:
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10/5/2015 8:18:46 PM
Posted: 1 year ago
At 10/5/2015 8:07:15 PM, thett3 wrote:
What are all these great foreign ideas the courts aren't implementing? You mention free speech and I know your opinion on Europe's idea of "free" speech but we both know that the vast majority of Americans disagree and that includes the justices on the court.

The example that I would use here is campaign finance. There are some interesting cases in Europe which support the notion that speech and money are different, and while they are connected, the latter can be regulated in a way the former can't. Citizen's United was pretty much a travesty...I would've loved to see the Court take some of those European nuances a bit more seriously.

And sure, the Court is constrained by political factors; it cannot go overboard with its use of "foreign ideas," but I would like to see it be a bit more willing to use these ideas. I think Citizen's United really is a good parallel to draw, because it was decided in a notably insular way, without really taking, just judging by the opinions, too many other ideas into account.
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thett3
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10/5/2015 8:24:01 PM
Posted: 1 year ago
At 10/5/2015 8:18:46 PM, bsh1 wrote:
At 10/5/2015 8:07:15 PM, thett3 wrote:
What are all these great foreign ideas the courts aren't implementing? You mention free speech and I know your opinion on Europe's idea of "free" speech but we both know that the vast majority of Americans disagree and that includes the justices on the court.

The example that I would use here is campaign finance. There are some interesting cases in Europe which support the notion that speech and money are different, and while they are connected, the latter can be regulated in a way the former can't. Citizen's United was pretty much a travesty...I would've loved to see the Court take some of those European nuances a bit more seriously.

And sure, the Court is constrained by political factors; it cannot go overboard with its use of "foreign ideas," but I would like to see it be a bit more willing to use these ideas. I think Citizen's United really is a good parallel to draw, because it was decided in a notably insular way, without really taking, just judging by the opinions, too many other ideas into account.

I'm not really a fan of Citizens United either (although I don't think it had much of an impact) but I don't think the reason the court ruled the way it did was because it chose to ignore European rulings on similar questions. Where's your evidence that Citizens United was decided in an "insular" way? Unless you think that any dissent from the European way of doing things is overly insular, in which case we get back to the issue about letting foreign lawmakers rule us.
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: At 11/12/2016 11:49:40 PM, Raisor wrote:
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bsh1
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10/5/2015 8:27:58 PM
Posted: 1 year ago
At 10/5/2015 8:24:01 PM, thett3 wrote:
At 10/5/2015 8:18:46 PM, bsh1 wrote:
At 10/5/2015 8:07:15 PM, thett3 wrote:
What are all these great foreign ideas the courts aren't implementing? You mention free speech and I know your opinion on Europe's idea of "free" speech but we both know that the vast majority of Americans disagree and that includes the justices on the court.

The example that I would use here is campaign finance. There are some interesting cases in Europe which support the notion that speech and money are different, and while they are connected, the latter can be regulated in a way the former can't. Citizen's United was pretty much a travesty...I would've loved to see the Court take some of those European nuances a bit more seriously.

And sure, the Court is constrained by political factors; it cannot go overboard with its use of "foreign ideas," but I would like to see it be a bit more willing to use these ideas. I think Citizen's United really is a good parallel to draw, because it was decided in a notably insular way, without really taking, just judging by the opinions, too many other ideas into account.

I'm not really a fan of Citizens United either (although I don't think it had much of an impact) but I don't think the reason the court ruled the way it did was because it chose to ignore European rulings on similar questions. Where's your evidence that Citizens United was decided in an "insular" way? Unless you think that any dissent from the European way of doing things is overly insular, in which case we get back to the issue about letting foreign lawmakers rule us.

It was based on my reading of the opinions. It was an incredibly dogmatic opinion from the majority that failed to consider adequately the nuances of the issue that the European courts spent quite a bit of time evaluating. I think reading or using some of the European ideas may have allowed the court to address the issue in a less blunt way. Obviously, I think there are bad European rulings and that even European rulings I like, should not be implemented here.

I might go back and look at Citizen's United and try to give you a more detailed response in the future.
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thett3
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10/5/2015 8:38:07 PM
Posted: 1 year ago
At 10/5/2015 8:27:58 PM, bsh1 wrote:
At 10/5/2015 8:24:01 PM, thett3 wrote:
At 10/5/2015 8:18:46 PM, bsh1 wrote:
At 10/5/2015 8:07:15 PM, thett3 wrote:
What are all these great foreign ideas the courts aren't implementing? You mention free speech and I know your opinion on Europe's idea of "free" speech but we both know that the vast majority of Americans disagree and that includes the justices on the court.

The example that I would use here is campaign finance. There are some interesting cases in Europe which support the notion that speech and money are different, and while they are connected, the latter can be regulated in a way the former can't. Citizen's United was pretty much a travesty...I would've loved to see the Court take some of those European nuances a bit more seriously.

And sure, the Court is constrained by political factors; it cannot go overboard with its use of "foreign ideas," but I would like to see it be a bit more willing to use these ideas. I think Citizen's United really is a good parallel to draw, because it was decided in a notably insular way, without really taking, just judging by the opinions, too many other ideas into account.

I'm not really a fan of Citizens United either (although I don't think it had much of an impact) but I don't think the reason the court ruled the way it did was because it chose to ignore European rulings on similar questions. Where's your evidence that Citizens United was decided in an "insular" way? Unless you think that any dissent from the European way of doing things is overly insular, in which case we get back to the issue about letting foreign lawmakers rule us.

It was based on my reading of the opinions. It was an incredibly dogmatic opinion from the majority that failed to consider adequately the nuances of the issue that the European courts spent quite a bit of time evaluating. I think reading or using some of the European ideas may have allowed the court to address the issue in a less blunt way. Obviously, I think there are bad European rulings and that even European rulings I like, should not be implemented here.

I might go back and look at Citizen's United and try to give you a more detailed response in the future.

but...how can you possibly claim that they "ignored" other ideas? I would bet a lot of money that every justices knows far more about legal systems and rulings in other countries than either of us do, so it's far more likely that they just chose to go their own way. You're basically suggesting that just disagreeing with a European court means that the US legal system is "insular" and "closed off" and all other kinds of invective. Screw that.
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: At 11/12/2016 11:49:40 PM, Raisor wrote:
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Greyparrot
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10/5/2015 8:45:46 PM
Posted: 1 year ago
A foreign government that doesn't have massive crippling crony issues might be trusted with the responsibility of regulating some free speech.

This country is a whole different animal. Heck, they cant even get a damn website to work. That's a much bigger factor influencing judicial rulings than Konrad the Eurosage.
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10/6/2015 2:35:49 AM
Posted: 1 year ago
Bump.
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TN05
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10/6/2015 12:03:12 PM
Posted: 1 year ago
At 10/5/2015 7:29:47 PM, bsh1 wrote:
At 10/5/2015 4:58:50 PM, TN05 wrote:
At 10/5/2015 12:38:07 AM, bsh1 wrote:
At 10/5/2015 12:31:09 AM, TN05 wrote:
At 10/4/2015 10:42:33 PM, bsh1 wrote:
I recently read something in an article which piqued my interest:

"The problem is that the trade in legal ideas is not a two-way trade. American ideas are for export, and there's very little effort in the U.S. legal system to import ideas. With respect to constitutional issues involving human rights, it's virtually impossible to persuade a majority of the U.S. Supreme Court to look at case law from other countries. The political and legal influence of the United States has been profound in favor of human rights around the world. American ideas have inspired the rest of the world. But jurists in the U.S. are not ready to be inspired by others." [http://www.theatlantic.com...]

Is the U.S. legal system elitist or closed-off to new ideas? And, if were are or aren't, is this a good thing? Should we places such emphasis on exporting our ideas over importing other ideas, or should be pursuing a kind of legal isolationism? I'd be interested to here your thoughts.

The reason jurists do not use foreign law to interpret ours is that the supreme law of our land is the Constitution, not the Constitution of other countries.

Sure, but I would respond to you as I did to Greyparrot. Obviously there are differences between our legal system and other legal systems. But, interpretation of a document is always subjective, and wording is often vague. Other legal systems may have interesting case law on topics relevant to our legal system which could be applied here without breaching our Constitution.

This is the sort of problem you run into when you reject textualism or originalism (which isn't necessarily conservative. Akhil Amar is a very liberal originalist judge.). They may have novel interpretations of their own laws, but how is that relevant to ours?

Let's use a broad, rather than a specific example, to answer your question. I am not going to get into a debate on textualism (though I think it's a silly approach to take)

So it's not important to base how you interpret the law off of what the people who wrote it intended it to cover?

so I'll focus on your last question. Suppose the court were considering if "X" counted as free speech. They can look at similar rulings from other countries to see what approaches those courts took in determining whether X (pornography, flag burning, campaign donations, etc.) was speech. Obviously, not all foreign rulings are going to jive with our legal system, but some of those rulings might offer interesting perspectives that are not necessarily in conflict with our legal system which could inform our justices. Perhaps these courts provided especially compelling theoretic arguments for why money isn't speech, for example. Nothing in our Constitution specifies what speech is, and so it is a theoretical issue on which different theoretic approaches can be exchanged.

But why is it important to do that? What makes a country with a fundamental difference in judicial precedent, laws, constitutions, treaties, etc. a good model to follow?

Good ideas can be passed through the legislative system, which is what is supposed to legislate anyway.

Why can't new ideas be introduced in any branch? Saying that only one branch can have new thinking is, frankly, silly.

The President certainly can propose ideas, so can Congress and the court for that matter. However, judges can't actually impose their ideas from the bench. Their job is to interpret law, not make it.

Borrowing ideas isn't the same as imposing ideas. Why can't judges look at novel ways to interpret things? Again, see the example of free speech. That is an issue of interpretation, but justices can still benefit from an exchange of ideas.

Judges are more than free to look at other countries and advocate their ideas - as citizens. When they are performing their job, that is a different story.

This is a fundamentally sound principle, and one I think conservatives and liberals would accept - it keeps government responsive to the interests of the people it represents. Basing court rulings off of the laws of other countries robs the people of representative government.

Using this logic, you should just abolish judicial supremacy and invest supremacy in the legislature.

The legislature has the power to make laws, yes, provided they adhere to the constitution. The court has the power to interpret them and determine if they adhere to the constitution - ours, not that of other countries.

You're assuming I want justices to adopt approaches that violate our constitution. That would be wrong.

But that depends on what you think is constitutional, no?

Not all ideas proposed in foreign courts are going to violate our Constitution, and not all court cases are constitutional.

But isn't it preferable to base our rulings off of laws we made, not laws other people made? That's my point.
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10/6/2015 11:30:30 PM
Posted: 1 year ago
At 10/6/2015 12:03:12 PM, TN05 wrote:
At 10/5/2015 7:29:47 PM, bsh1 wrote:
At 10/5/2015 4:58:50 PM, TN05 wrote:
Let's use a broad, rather than a specific example, to answer your question. I am not going to get into a debate on textualism (though I think it's a silly approach to take)

So it's not important to base how you interpret the law off of what the people who wrote it intended it to cover?

I think you missed the underlined bit.

so I'll focus on your last question. Suppose the court were considering if "X" counted as free speech. They can look at similar rulings from other countries to see what approaches those courts took in determining whether X (pornography, flag burning, campaign donations, etc.) was speech. Obviously, not all foreign rulings are going to jive with our legal system, but some of those rulings might offer interesting perspectives that are not necessarily in conflict with our legal system which could inform our justices. Perhaps these courts provided especially compelling theoretic arguments for why money isn't speech, for example. Nothing in our Constitution specifies what speech is, and so it is a theoretical issue on which different theoretic approaches can be exchanged.

But why is it important to do that? What makes a country with a fundamental difference in judicial precedent, laws, constitutions, treaties, etc. a good model to follow?

Just because differences exist does not preclude their being relevant similarities. Again, I would refer you to the free speech example. There is not definition of speech in the Constitutition, and it is a phrase that courts world wide have had to deal with. Surely, there must be some good, applicable ideas from those courts that could inform our own perspective.

Borrowing ideas isn't the same as imposing ideas. Why can't judges look at novel ways to interpret things? Again, see the example of free speech. That is an issue of interpretation, but justices can still benefit from an exchange of ideas.

Judges are more than free to look at other countries and advocate their ideas - as citizens. When they are performing their job, that is a different story.

I disagree. Just because they're sitting on the bench doesn't mean that they should have the blinders on that. That is just silly.

Not all ideas proposed in foreign courts are going to violate our Constitution, and not all court cases are constitutional.

But isn't it preferable to base our rulings off of laws we made, not laws other people made? That's my point.

I don't think you understand what I am suggesting. I am not talking about basing decisions off of foreign laws. I am talking about allowing foreign legal ideas to be examined for their validity in our courts as well.
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