I was invited to give a lecture at the University of Oklahoma last year on this subject, and that turned into a law review article, which was just published in the Oklahoma Law Review. I thought I’d serialize this article on the blog, since in my experience many of our readers have been interested in the subject.
Here’s the general summary: I’m skeptical of some of the internationalist impulses that often come from the left, in particular when it comes to using foreign law to influence how the U.S. Constitution is understood. But I also think the criticism of the use of foreign law in the American legal system misses some important matters — matters involved in much less glamorous but more frequent cases, whether having to do with contracts, torts, judgments, family law, or other things. And the proposed solutions to a real but relatively minor problem may cause much more serious problems instead.
And the problems that these proposals would cause should concern most Americans, without regard to ideology. They would be practical problems for American businesses and individuals, affecting the everyday functioning of our legal and economic systems.
We shouldn’t embrace every attempt to introduce foreign law into the American legal system, but neither should we rush to reject foreign law generally. There are times when American law does, and rightly should, call for reference to foreign law, and there are times when it should not. (In an article in the following issue of the law review, which I also plan to serialize in a couple of weeks, I say something similar about the use of religious law in the American legal system.)