I'll be as happy as anybody when Justice Ginsburg steps down from the Court, but people are making way too big a deal out of this. The Supreme Court looking to foreign precedents is no different than when the state courts of Rhode Island look to other states' decisions when the relevant law and circumstances are the same or similar. Just like RI courts aren't bound by out-of-state decisions, the U.S. isn't bound by foreign decisions. But why make up something new when you look to and agree with the reasoning of another court?

"The Supreme Court looking to foreign precedents is no different than when the state courts of Rhode Island look to other states' decisions ..."

At the risk of pointing out the obvious, Charles, the weakness of your comparison is that other states are within the United States. Other states are the Unites States. Other countries ... well, are not.

The laws of other states may well have already received the ultimate stamp of approval for a US law: review and favorable ruling by the US Supreme Court (Indiana's voter ID law, hint, hint, Secretary Mollis and Speaker Murphy). The laws of other countries could not have been.

Whew! After just reading the title, I thought you had a problem with Diana Ross!

Let me guess Monique, you're not a lawyer are you? You might as well be blogging about the proper procedure for constructing a super collider.

"But if the court permits itself to be influenced by the reasoning of a foreign precedent and then shape or reshape an American law on that basis, doesn't that have exactly the same effect as if the court were were bound by that foreign law? "

Uh, no. A court that is bound by the precedent of another court is a very different matter than a court that looks to the reasoning of another court and decides that the reasoning makes sense. Although I understand that within the coccoon of the right, it is unfathomable to consider "foreign" ideas to have any merit whatsoever.

Pragmatist-I'm not a lawyer,are you?Even if you are,I disagree.We can't be influenced by foreign court decisions because(a)they arise out of legal systems different than our own and(b)it is a threat to American indepenence.
Ginsburg is one among many internationalist worms in our government striving toward one world control by their ilk.

I guess the question I'd have on this is what laws are the US's laws originally based on? Or did our original lawmakers have 100% original thoughts?

If there is some anti-trust question about a merger of two corporations with lots of fine points involved, and our Supreme Court wants to see how a French court or a Spanish court handled a similar situation and why, I don't have much problem with that. If another country makes a decision that makes sense and we have a similar situation, I got no problem with our justices researching it and if their solution applies and seems to make the most sense, use it here too.

I'd like to offer thanks to commentors Charles and Patrick for making very reasonable points here.

There are some questions of American law for which American sources provide complete (or nearly complete) answers.

There are other questions where American sources do not provide complete answers.

In the latter cases, the idea that American courts should not look to foreign courts for intelligent answers is simply foolish.

A little humility would do us all good.

Well here's a question for the professor:

With regard to which questions of American law do you believe it necessary to consult foreign law in order to obtain a "complete answer?"

Prof.Schmeling-pray tell us what countries show humility?
Your speciality area is political science so I expect you could provide us with an answer.
I suspect a lot of this "international law"noise from internationalists like Ginsburg is a cover for overriding the 2nd amendment with a UN law prohibiting private firearms ownership.George Soros is behind that move through his cat's paw Rebecca Peters who is pushing this in the UN.Ginsburg voted against individual firearms rights in Heller.
She also whined in the samt statement about how lonely she was as the only woman on SCOTUS while Canada had four.I have a solution for her-quit.Then she won't be the only woman on the court.

Joe, (and please, call me Thomas)

I have noted your many comments on RIF and here and have thought most of them very reasonable. However, I find your comments in this thread to be rather xenophobic.

The notion that American courts paying attention to foreign courts' decisions and, perhaps, learning something from them, is a "threat to American independence" and people who think otherwise are "internationalist worms", is beyond the pale of reason.

Joe,

PS: that stuff about the 2nd amendment, and telling Ginsburg to stop whining about being the only woman on the court (1 of 9..in a nation that is 51% female) is just plain cranky.

Brass,

Lets say I am a conservative (ala Judge Richard Posner) and believe that courts ought to adopt rules of property that maximize efficiency.

Would it be rational for me to assume that ONLY american judges have the best answers regarding which rules of property law maximize efficiency, and to ignore the rulings of foreign courts? Would it be rational to assume that American judges are so much smarter than French, Spanish, or other judges?

I think not.

Conservative judges should be willing to listen to the rulings of foreign judges and ask whether the rules they come up with are better or worse than the rules that American courts come up with.

If they aren't so willing, they are rather foolish, aren't they?

Well I'll admit that I have no idea what you are talking about when you refer to "rules of property that maximize efficiency."

But I do think that if there is any area of the law in which it is important for the law to be consistent and predictable, it is the law of property.

So I'd be very wary of our judges "adopting" new rules, regardless whether those rules are efficient or . . . inefficient.

And since I thought that most property law in this country is now statutory, I'd appreciate it if you'd give some explanation about your comment.

Brass,

I'm quite surprised at your response.

I thought that you, more than anyone here, would be aware of the movement in law to adopt rules that maximize economic efficiency. I had assumed that you had read Posner, et. al..

Perhaps property was not the best example, though. Would you prefer tort, or contract? I think it does not make much difference. The discretion of judges in interpreting statutes is narrower, but not much, than their discretion in adopting common law rules.

My point is this: If judges are to adopt "good" rules of law, there is no reason not to look to foreign sources, since "good" rules may well be found there.

If you deny that judges have the discretion to choose rules of law, I'll say (with some regret) that you understand the judicial process less fully than I thought.

Thomas-I am not xenophobic when it comes to foreign people.I like the idea of a melting pot welcoming anyone who means no harm as long as they come here legally.
I guess I am a xenophobe about adopting any foreign political/legal ideas as part of our legal/political corpus.
I'm just a little tired of Ginsburg.She lied to the Senate with regard to her stand on the death penalty during her confirmation hearings.
She was a policy-making executive in the ACLU(as opposed to an ordinary member),yet has never recused herself in a case where the ACLU is a litigant.
This may explain my extremely pissed off attitude regarding this justice.
As far as being cranky,I plead guilty as charged and unrepentant.

I don't have a problem, in theory, with the court reviewing the reasoning of foreign courts. However, her other statements about getting respect and being listened to and her decision history/philosophy put her comment in a context that suggests she would like this to occur much more than rarely.

Back to reality, we've got 200+ years of Judicial/legislative history and a Constitution (by the way) and she thinks she can't find rationale from that body of work?

If she is referring to interpreting the original meaning of the founders where they referred to other foreign sources, I'll give her that. If so, I'd love to hear her reasoning on the definition of an Article 2 President/Vice President Natural Born Citizen. Would she rely on Vattel's "Laws of Nations" and conclude you need to be born on U.S. soil with both parents regular U.S. Citizens?

"If you deny that judges have the discretion to choose rules of law, I'll say (with some regret) that you understand the judicial process less fully than I thought."

Ok, I'll play.

Take your pick . . . property, tort, or contract.

Cite me an example of a recent (within the past ten years) case -- let's say one decided by the R.I. Supreme Court or the Mass. S.J.C. -- in which the court "chose" a "rule of law."

If possible, cite one in which the court considered a case decided by a court outside of the U.S.

And another thing . . .

"The discretion of judges in interpreting statutes is narrower, but not much, than their discretion in adopting common law rules."

Can you cite a couple of examples of cases where courts have claimed to have "discretion" in the interpretation of statutes?

Joe: "I guess I am a xenophobe about adopting any foreign political/legal ideas as part of our legal/political corpus."

Why? If they have good ideas, why should we ignore them? Have we nothing to learn?

Brass: Why all the restrictions? (10 years, RI and MA). Try this example: I assume you will agree that courts "chose" between contributory and comparative negligence in tort. Which do you think is the better rule? If a court is weighing the two, why not read the opinions of foreign courts to see what they say about the costs and benefits of the two rules?

Brass,

you say, "Can you cite a couple of examples of cases where courts have claimed to have "discretion" in the interpretation of statutes?"

Why should I have to cite cases where the courts make such a claim when it is obvious that they have such discretion? I could easily cite dozens of cases in which the interpretation of a statute could have gone the other way without being an unreasonable interpretation. Many statues are written so as to give judges great freedom of interpretation. Often, they are deliberately so written.

Again, I am somewhat surprised at you. I would not have thought that you had such a deterministic view of law that you would deny that judges have this freedom of interpretation.

"I assume you will agree that courts "chose" between contributory and comparative negligence in tort."

Um . . . no!

Comparative negligence is a creature of statute. See, e.g. R.I. Gen. L. sec. 9-20-4; or Mass. G.L. ch. 231, sec. 85.

And, of course, the two statutes operate quite differently, making the choice of law rather important for an accident that arguably involves either Mass. or R.I. law.

Try again.

"Why should I have to cite cases where the courts make such a claim when it is obvious that they have such discretion?"

Well, of course you don't have to.

But since I can't recall a case in which a court claimed such discretion, I was hoping you could educate me, or possibly refresh my recollection.

Brass,

"Comparative negligence is a creature of statute."

Sometimes yes, sometimes no.

The world is bigger than RI and MA. The choice between contributory and comparative negligence was made by statute in some states, but by courts in others.

So, no. I will not "try again" and will stand by my statement.

But, if you don't like comparative negligence, try wife's claim for loss of husband's consortium or the abrogation of spousal immunity in tort, strict liability in tort, abrogation of privity of contract... I've got others, if you like, but I don't see the point,, and I'm finding your insistence that courts don't chose rules of law to be rather bizarre.

Your apparent claim that courts don't chose rules of

"But since I can't recall a case in which a court claimed such discretion, I was hoping you could educate me, or possibly refresh my recollection."

The truth value of the claim that "judges have broad discretion to determine the meaning of statutes" is totally independent of whether any judge has made such a claim.

OK, I'm quoting myself, which is pretty sad, but I want to add something.

I said "The truth value of the claim that "judges have broad discretion to determine the meaning of statutes" is totally independent of whether any judge has made such a claim."

What I want to add is that judges have an incentive NOT to make the claim that there are equally plausible alternative readings of a statute. A judge deciding a case wants to present her interpretation as the one correct reading of the statute, and to marshall evidence to support that reading. No judge in her right mind would say, "the dissent's reading of this statute is just as plausible as mine".

The judge, like the lawyer, is an advocate, and is bound to defend her position. The objective observer of the process is not so bound.

Excuse me for interrupting your riveting dialog gentlemen. But I like to look at issues like this as simply as possible.

I don't like the idea of judges, or justices, who cannot find support for their positions among U.S. law cases, choosing to look off-shore when existing U.S. precedent contradicts their opinion.

I may be a little naive, but I would still prefer to believe that a contemporary state of law in this country, abeit somewhat loosely, would reflect the general will of the people WHO LIVE IN THIS COUNTRY AND VOTE FOR THE PEOPLE WHO APPOINT JUDGES!

Sure we can learn from decisions made in foriegn countries. But to base our law on decisions made outside our democracy is just plain UN-AMERICAN!

George,

With respect, I think I must disagree. In my mind, what is truly and distinctively AMERICAN is our ability to grab onto new and interesting ideas, sift them through our experience, and use what works, without regard to where the ideas come from. Thus, in our society, it doesn't matter if you're a millionaire or a bicycle mechanic...we don't care who you are, we only care if you have a good idea.

People who reject ideas before thinking them through because they are not OUR ideas, reflect an old-world way of thinking that, in my mind, is distinctly UN-AMERICAN

"The judge, like the lawyer, is an advocate . . ."

Wow!

And you question my understanding of the judicial process?

Perhaps what I find so troubling in your analysis is your use of the word "discretion" in describing the role that a judge plays in legislative interpretation.

"Judicial discretion" generally refers to situations in which a judge -- usually a trial judge -- is entitled to deference from an appellate court because of the nature of the decision or ruling under review.

I don't believe that an appellate court would refer to legislative interpretation as falling within the ambit of "judicial discretion," and if one did it would be an outlier.

Which explains why you probably won't find a case in which an appellate court opines that judges have "discretion" in legislative construction.

Indeed, courts have developed canons of statutory construction for the purpose of limiting the interpreters' "discretion."

Do courts always adhere to these rules?

Probably not, and even when they try to adhere to the canons, they cannot always filter out the ideological leanings of the interpreting judge(s). (And, since the goal of construction is pretty much an effort to give effect to what a legislative body did when it enacted the statute under review, I would not expect the canons to find much utility in consideration of "foreign law" in many situations).

But "discretion?"

No, I think you are very wrong in the use of that word to describe the process.

To George's comment:

"I don't like the idea of judges, or justices, who cannot find support for their positions among U.S. law cases, choosing to look off-shore when existing U.S. precedent contradicts their opinion."

I would agree with that. But what do you look to when there is no precedent? When you have American precedent for a case, decisions are pretty easy. When there is no precedent in the US and you're the one setting it, the decision isn't so easy, so why not look to somewhere that does have precedent and how they handled it.

To take this to the next step of people's tone, where we are Americans and we should do things the American way and not look to how others do things and use what works for them, I haven't seen any suggestions for a better means of federal government. I'm guessing you all would abolish Congress, since that's not an original American idea either. That's a copy of England. So how should we create our government if we're not going look at how anyone else has done it? Any suggestions? Isn't any kind of ruling body basically a copy of how other countries have done it? What other options you got? A monarchy? A dictatorship? Anyone?

Looking at how others have done things and using that as a suggestion for how we can do things is not a bad idea. It's actually smart.

Brass,

It strikes me as a little fussy, but if you want to reserve the word "discretion" for "situations in which a judge -- usually a trial judge -- is entitled to deference from an appellate court because of the nature of the decision or ruling under review", I'll use the word "freedom" instead.

You say, "Indeed, courts have developed canons of statutory construction for the purpose of limiting the interpreters' "discretion."

While the canons may constrain the judges' interpretive freedom, they don't eliminate it. it's easy to come up with examples where two canons (say, expressio unius... and ejusdem generis...) point in different directions when applied to the same statute. Likewise with plain meaning and legislative intent. What then? The judge has to choose which to follow. Since there is no rule that determines which he must pick, he is free to pick either.

I'm puzzled at your shock at my referring to the judge as an advocate. Once a decision is reached, that's what he becomes. He writes an opinion in which he says "here is the holding, and here are the reasons why it's the correct holding and why the opposite result would be incorrect". The point is not merely to explain, but to convince other judges, the broader legal community, and even the public, that the judgement was correct. Perhaps you don't like my word choice here either, but that seems like advocacy to me.

"Likewise with plain meaning and legislative intent."

So you think that an interpreting court has the freedom to choose between the "plain meaning" of a statute and "legislative intent?"

Really?

Can you think of an example in the decided caselaw where that has occurred?

I thought that if the meaning of a statute were "plain," then the role of the legislative interpreter would be at an end and the court would give effect to the plain meaning. I thought that only when the statute's meaning was not "plain" would the court turn to other tools of interpretation, such as legislative intent.

Maybe you've got a case that says otherwise . . . if so I'd love to see it.

Thomas-I have a problem with taking ideas from European countries that got their wealth by colonizing most of Africa,Asia,and Latin America.
I also have a problem with taking guidance from despotic regimes such as China,Russia,Iran,etc.or truly xenophobic countries like Japan.
I do have to say that the Chinese approach to capital punishment for criminals(as opposed to political prisoners)has a lot going for it.
I think we have the best system in the world,which doesn't mean perfect,since it's manmade.
It's just better than the others.

Thomas and Patrick,

I don't mind an entrepreneur, a scientist, an engineer, a researcher, a professor, or even a legislator taking an idea, from outside the American box, tossing it around and using it for the good of the people. But judges, NO WAY. That's far too dangerous.

And Patrick, I'd be interested in hearing about some of those cases where "there is no precedent". I'm willing to bet most of them consist of no available precedent leaning toward the adjudicator's favorded inclination.

Brass,

You say,, "So you think that an interpreting court has the freedom to choose between the "plain meaning" of a statute and "legislative intent?"

Yup. In fact, sometimes it must do so.

The so-called "golden rule" is that courts should follow the plain meaning unless it leads to an absurd result.

However, deciding whether a result is "absurd" is a) a question of judgment and b) generally requires thinking about the purpose of the statute, so that the question of whether to follow the plain meaning requires some reference to the purpose (which is obviously closely related to, if not identical with) legislative intent.

Though it is perhaps not the best example, my favorite is Smith v. US (508 U.S. 223 (1993)).

Smith had traded an automatic weapon for cocaine. He was convicted under a statute punishing anyone who "uses a firearm during and in relation to a drug trafficking crime."

The lower courts held, and the USSC agreed, that Smith had "used" a firearm under the plain meaning of that term. I find it hard to disagree.

Scalia,, however, dissented. Much of his argument is linguistic. (we must think about how the term "used a firearm" is ordinarily used rather than how it might be used) and he does not appeal to hearing reports or statements of the framers of the law. However, I don't think you can reach the conclusion he does except by going beyond the plain meaning and thinking about what the legislature had in mind when they used the word "use".

The justices had to choose between following the plain meaning of what the legislature said ("uses") and what they meant ("uses as a firearm is ordinarily used-fired,brandished etc"). I think Scalia was probably correct here, but there are good arguments on both sides. That's my point. The justices had to choose, and were thus "free" to do so.

Thomas-I have encountered firearms/drugs as part of my former occupation many times in the real,not theoretical world.
Someone trading firearms for drugs is indeed committing a crime-i.e.conspiring to traffic in drugs and an unlawful firearms transaction.
"Using" a firearm in a drug transaction meant to me that the individual had the firearm available for immediate use.
On one occasion I recall we found a quantity of drugs in a home on the 1st floor and a loaded shotgun,which was legally owned,on the second floor.Only one occupant out of four in the house was charged.We didn't add on a gun/drug transaction charge because we had the suspect in custody prior to executing the warrant(possession on person) and no one else in the house were potential suspects.It wasn't reasonable that the suspect could use the shotgun in any drug transaction.
On the other hand when we crashed a house on California and the suspect had drugs,a 12 gauge,and a .357 magnum all in arms' reach,we sure did charge him.
It's all a matter of the totality of circumstances.Thus the black and white aspect of laws is greyed a little.

Well it's a nice effort, but I don't buy your spin on Smith.

Where in Justice O'Connor's opinion for the Court does she suggest that the Court is free to "choose" "plain meaning" over "legislative intent?"

Au contraire, although she agrees with the speculation of the D.C. Cir. that Congress may not have had "barter" in mind when it crafted the statute, such speculation is unnecessary because the Court regards itself as bound by the "plain meaning" rule. ("When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning. See Perrin v. United States, 444 U.S. 37, 42 (1979) (words not defined in statute should be given ordinary or common meaning).")

And does the Scalia dissent really advance "legislative intent" over "plain meaning," or even suggest that the Court can pick whichever it likes?

I think not . . . most of his analysis simply turns upon his own view of the statute's true "plain meaning."

OK -- I'll grant you the "absurd result" exception to the "plain meaning" rule, but that exception does not grant the construing court a broad license to pick and choose between "plain meaning" or "legislative intent."

And I'll agree that the entire process involves the exercise of some judgment by the construing court in application of the canons, but, again, I certainly don't view that as conferring "discretion" on the court simply to pick the construction that it favors.

I have a different view of judging, I guess, than you do.

Brass,

I don't know if you're still reading this thread or not. Work and life have kept me from responding in a timely manner. Sorry.

I think we may be talking past one another to a certain extent. When I say a judge is "free" to adopt an interpretation (or approach to interpretation), I am not being prescriptive or offering approval. I am only saying the following: a) the meaning of a statute is often subject to various interpretations (if not, they don't get litigated). b) judges employ various tools and rules of interpretation (plain meaning, purpose, intent, the canons) to aid interpretation, but sometimes different rules lead to different results. c) when that happens, judges must choose which to follow, as there is no agreed upon meta-rule that tells judges which rule to follow.

I'll grant that "plain meaning" tends to have priority, but that's not always followed. "Nevertheless, in rare cases, the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and those intentions must be controlling" (489 U.S. 235, 242). For example, if I take my wife to Massachusetts to lie to someone, I will not have violated the Mann act, even though I took a female over state lines for an "immoral purpose", because it is known (from textual clues within the statute and legislative history) that the statute was designed to punish prostitution and related activities.

The Smith case, as I said, is perhaps not the best example, but I think it serves. When Scalia says, "use" must mean "used as a weapon" or "used as a gun in ordinarily used", I think he's making an implicit appeal to what the legislature was trying to accomplish. Moreover, if O'Connor and Scalia disagree as to what the "plain meaning" of the word "use" is, then I think it's meaning cannot be so plain.

I would not say that judicial choices are totally free; there are some answers to questions of interpretation that are not plausible, or at least that will not be seen as plausible by the relevant communities (other judges, law professors, the legal profession, the public). But while law may constrain judicial choice, it does not fully determine it, at least not in "hard" cases. I just cannot look at the number of divided opinions on the USSC, frequently 5-4 and frequently divided along partisan lines, and accept that it does. That Thomas votes conservative 82% of the time an Ginsburg votes liberal 69% of the time cannot be explain by the law or the rules of interpretation. Nor do I believe that one of the other of them is following the law while the other one is not. I simply don't believe that law is determinate enough to prevent other factors (including their notions of what the law should be) from influencing both of them.

I would not expect any judge to say "I am free to choose "plain meaning" over legislative intent (or the reverse) and will do as I wish to reach the result I like". Saying this would undermine the claim that his or her argument is correct. Moreover, if either O'Connor or Scalia said "I am not merely choosing what I want to do here, my answer is the correct one", I would not accuse them of being insincere.
But the fact that judges don't believe their personal and political values are influencing their judgments doesn't mean that it's not happening.

Well, in a way, we are back where this thread began; the question was whether U.S. judges ought to be influenced by foreign law.

If you believe that it the job of a judge to try to figure out the best way to deal with a particular issue, and if you believe that judge to be free to choose from whatever range of alternatives the judge can find . . . well then consulting foreign law does make some sense.

Hey, if it's up to the judge to "choose" what the law should be, why not look to see how our friends in France, or China, or Indonesia have addressed the same or similar issues?

Of course, what you do then is transform the judge into a legislator . . . there's no reason why the legislature in attacking a problem should not consider what other countries have done with the same problem.

On the other hand, if you see the judge's role as attempting to "find," rather than "make" law -- a view that I think is far more consistent with our common law tradition -- then foreign law really has no role (or at most an extremely limited one).

Here the judge is trying to figure out based on tradition and past practice what the law is, not attempting to codify the judge's own view of how he or she would like it to be. And in deciding a particular case, the law that the judge is trying to find is not some disembodied or amorphous global or universal law, but the law of the United States, or one of the several States. What possible importance could France or Guatemala have to such an effort? None (except in some very limited cases).

Obviously judges bring to this task that which they have -- experience, training, and some personal prejudices. An honorable judge will try as much as possible to put this personal baggage aside in seeking the answer to the question, relying instead on what has come before in the decided case law. Being human, the judge will succeed only some of the time. This is one reason why it is beneficial that courts of last resort have several judges who can act to check each others' prejudices.

So I think one's view of this whole thing turns upon whether one sees judges as performing principally a legislative function, or a more limited judicial one (conceding, of course, that judges, legislators -- even professors -- do not always succeed in divorcing their own personal prejudices from their performance of their assigned roles).

This topic is about to slip off the bottom of the page,, but….

Brasband: If you believe that it the job of a judge to try to figure out the best way to deal with a particular issue, and if you believe that judge to be free to choose from whatever range of alternatives the judge can find . . .

I'm not really talking about what "the job of a judge" is, in the way you seem to be. It seems you're talking about what judges ought to do, I'm describing what judges actually do. My view is that the distinction you would like to maintain between "finding law" and "making law" falls apart in a large number of cases.
The judge is not entirely free. The range of a judge's choices are limited by text, intent, precedent, etc. The legal community (judges, law professors, the bar, members of Congress, the people, etc) maintain the boundaries of acceptable interpretation though widely-accepted (but often contested) notions of "judicial craft" . The constraints may be tighter or looser from case to case, but the fact that law (as understood by those communities) constrains choice, does not mean that law is capable of determining results in every case.

Brassband: Of course, what you do then is transform the judge into a legislator . . .

The question is not whether or not the judge should be a legislator, because she has no choice but to do so, at least when deciding appellate cases which are, in many or most cases, appealed precisely because the legal materials do not provide definite answers.

I'll grant that there are better and worse answers to every legal question, and that some answers to some questions are definitely wrong and others right, or at least more right. But the notion that there is one right answer to every legal question and that you can "find" it in the law itself if only you have the right method, I regard as implausible.

Brassband: An honorable judge will try as much as possible to put this personal baggage aside in seeking the answer to the question, relying instead on what has come before in the decided case law. Being human, the judge will succeed only some of the time. This is one reason why it is beneficial that courts of last resort have several judges who can act to check each others' prejudices.

I agree with everything you say, but would add that the problem is not simply one of human frailty. The real problem is that the law itself is not always determinate or determinative.

"The question is not whether or not the judge should be a legislator, because she has no choice but to do so, at least when deciding appellate cases which are, in many or most cases, appealed precisely because the legal materials do not provide definite answers."

With all due respect, a statement like that one reveals quite a bit the author's experience with appellate tribunals.

Cases are appealed because the losing party was dissatisfied with the result in the trial court, which often has very little to do with whether the "legal materials" supplied any kind of answer at all.

The percentage of appeals in which an appellate court is required to address a novel question is extremely limited -- certainly fewer than ten percent and probably fewer than five percent in most jurisdictions in most terms.

[SCOTUS excluded, of course, both because it does not hear appeals and because its certiorari jurisdiction is generally exercised only in those cases that present novel questions.]

Anyway . . . apparently you have a very different perspective than I do on -- as you put it -- "what judges actually do."

Brass,

I am happy to admit that I was careless in writing the following:

"The question is not whether or not the judge should be a legislator, because she has no choice but to do so, at least when deciding appellate cases which are, in many or most cases, appealed precisely because the legal materials do not provide definite answers."

I should have limited the statement to the USSC and other Courts of last resort deciding cases which are not subject to further review, and especially appellate courts with significant control over their dockets. Or else , I should have said "some', not "many or most"

Cases are appealed because the losing party was dissatisfied with the result in the trial court, which often has very little to do with whether the "legal materials" supplied any kind of answer at all.

There is a great study by Scott Barclay of SUNY that shows that many people appeal even though they don't expect to have the lower court decision reversed. For them, the appeal serves an expressive function. So, yes, I agree.

The percentage of appeals in which an appellate court is required to address a novel question is extremely limited -- certainly fewer than ten percent and probably fewer than five percent in most jurisdictions in most terms.
Agreed again, if you're talking about the US Courts of Appeal and State I.C.A.s. Probably also true for state COLRs, at least for those that don't have much discretion over their dockets.
You can go even further than you have with your statement if you like., Think of all the cases that are never appealed because the result is obvious. Think of all the cases that are settled before trial because the result is obvious.

[SCOTUS excluded, of course, both because it does not hear appeals and because its certiorari jurisdiction is generally exercised only in those cases that present novel questions.]

Why would I exclude SCOTUS? They are what I had most in mind. Your distinction is technically correct, ,but the fact that almost all of the cases that the USSC come as petitions for cert. rather than as appeals doesn't mean we shouldn't include those when talking generically about appeals. It is an appellate procedure and the cases come the court under its appellate jurisdiction. If it's important to you, I'll try to be more precise, but I think you already understood what I meant.
It's quite correct, however, that the USSC 's control over its docket means a higher proportion of "hard" cases. In fact, when I talk about this stuff with my classes, I make it a point after we've discussed the "attitudinal model", to point out that it works really well for the USSC in large part because of discretionary review, and much less well for lower courts because in the vast majority of cases, the law is clear. Of course, saying that "the law is clear" may mean nothing more than "we know how SCOTUS will rule on this if they get it.

Anyway . . . apparently you have a very different perspective than I do on -- as you put it -- "what judges actually do."

Maybe so, and maybe not. Here's my sense of it.

A) Here's where I think we disagree: I'm a big fan of this statement by Holmes: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law". I think you get as much, if not more, understanding about what judges do by watching what they actually do, as opposed to listening to what they tell you about what they do or adopting essentialist approaches to what the law really "is". I don't mean you should ignore what the judges (and the laywers) say they are doing, I just don't think you should take it at face value. I suspect that you find Holmes's statement revolting, or at least wrong-headed.

B) Here's where we might agree: I think that, for the majority of cases, there is sufficient agreement on what the law is that there is little room for the subjective attitudes of judges to have much play. In a smaller, but not insignificant number of cases, the legal sources are sufficiently indeterminate that reasonable arguments can be made for either side. In such cases, judges attitudes become much more important.

With all due respect, a statement like that one reveals quite a bit the author's experience with appellate tribunals.

That strikes me as an unnecessary bit of ad hominem. However, while I'll make no claims for myself, I am happy to hold the work of political scientists up against that of practicing judges and attorneys with regard to understanding of how the courts work. I don't know if you follow the law journals but the trend has been for them to cite the work of academic political scientists and economists precisely because they have realized it offers a perspective on their world that the practitioner (or the academic working with strictly legal sources) doesn't generally have. We don't criticize the findings of entomologists because they aren't themselves bugs.

Since this thread has not yet slipped into the abyss of the back-pages, I figure I'd offer one parting shot.

In reflecting on the whole thing, I returned to Monique's original post. In castigating the Court for relying on foreign influences, she offers one case as as an exemplar of the terrible consequences of looking outside our borders: Kelo v. New London.

Now, I don't have much interest in defending the result in Kelo, but one thing struck me: nothing that I can see in the majority opinion in that case makes any reference whatsoever to foreign sources. So how does that opinion become the poster child for the "error" of paying attention to foreign sources?

But wait, there's more! It turns out that Justice Thomas' dissent begins with a reference to one Wm. Blackstone...a foreigner! He follows that up with several references to Samuel Johnson...another foreigner!

Here's another funny thing. Remember Justin telling us how bad it is that unelected courts strike down laws that reflect the will of the elected members of a state legislature (see the Iowa same-sex marriage case, Varnum v. Brien). That's judicial activism, right? The Kelo decision, which upheld CT's taking of private property for "public" use, seems to be an example of the kind of judicial restraint that you might expect him to admire.

No?

If not, is it just a matter of liking judicial decisions when they go they way you think they should and hating them when they don't. In which case, isn't all this talk about respect for the rule of law is just a bunch of folderol?

Or, am I missing something deeper here?