Foreign Law and Constitutional Interpretation: The Debate Behind the Diatribes

Justice Antonin Scalia's public remarks can usually be expected to include a provocative and entertaining mixture of biting wit, crisp legal analysis, and good humor. His keynote address at the American Enterprise Institute did not disappoint. He told the assembled crowd that he was there to talk about "the subject of the use of foreign law in American judicial opinions" and began by attempting to disarm some of his critics. "I am not a xenophobe," he explained patiently, and besides, foreign law was not entirely off limits in his view. According to Justice Scalia, if the question at issue involves the interpretation of a treaty or a U.S. statute that implicates international law, or if one is merely identifying empirical evidence about the possible effects of a given legal rule (for example, to respond to an argument that "the skies will fall" if a given interpretation is adopted), foreign law can be relevant and unobjectionable.

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