Like many attorneys, I have been keeping tabs on the nomination hearing for Judge Neil Gorsuch to the U.S. Supreme Court. While much of the legal world's commentary on Judge Gorsuch's jurisprudence has focused on originalism versus constructivism, it was this headline that piqued my interest as an international litigator: "Gorsuch: 'As a general matter,' court shouldn't look to foreign or international law."
The hang-ups that conservatives have over U.S. courts looking to foreign law or international law never made sense to me. The crudest expression of that hang-up, such as the ill-advised "Sharia law ban" that Oklahoma passed (and the Tenth Circuit overturned,) can be nothing else but arising from total ignorance of American law's long tradition of having U.S. courts apply or consult foreign or international law. Off the top of my head, there are at least four situations in which U.S. courts apply or consult foreign or international law.
1. Treaty Interpretation. When a U.S. court interprets an international treaty which applies to the United States, the court does not use domestic law to interpret the treaty's terms of art. The court--shock of shocks!--consults the prevailing interpretation in the international law to make that determination.
2. Choice of Law Clause in a Contract. Parties can always voluntarily agree to have a foreign law be the governing law to interpret their contract. If the contract is being disputed in a U.S. court, the court does not ignore the party's agreement and apply the U.S. law; it applies the foreign law specified in the contract.
3. Obligation Created Under a Foreign Law. Parties may create an obligation in a foreign jurisdiction, then later litigate that obligation in a U.S. court. When the creation of the obligation occurs outside of the United States, the U.S. does not pretend that U.S. law applies in determining the validity of the obligation. Tech Sonic, Inc v. Sonics & Materials, Inc., 2016 U.S. Dist. LEXIS 94979 (D. Conn. July 20, 2016) is an example from this blog. In Tech Sonic, a South Korean company assigned its right to sue a U.S. company to another Korean company. The court dismissed, because the assignment was not proper under Korean law.
4. Conflict of Laws Analysis. If a U.S. court determines that the events under consideration have the closest relations with a foreign forum, the court will apply foreign laws. For example in Vietnam Land v. Tran, 2016 U.S. Dist. LEXIS 36160 (S.D. Tex. Feb. 18, 2016), the Texas court used Vietnamese law to determine the breach of contract and fraud claims based on events that occurred in Vietnam--even though the defendant was a U.S. citizen living in Texas.
I am sure others can come up with more examples, but these are very common scenarios with long history within the U.S. law. One can even look as far back to the medieval English Court of Chancery and find that the equity court would apply lex mercatoria--the contemporary version of the international law--when a dispute involves a person who is not a subject of the English crown.
Of course, Judge Gorsuch is no dummy. He is clearly aware of the situations in which U.S. law looks to foreign law or international law. In his hearing, Judge Gorsuch said it would be proper to look at a foreign law or international law in treaty interpretation or certain types of contract law cases. But he also said: "as a general matter . . . I would say it's improper to look abroad when interpreting the Constitution--as a general matter."
Oh? I am curious to hear what Judge Gorsuch thinks about the Supreme Court's jurisprudence on personal jurisdiction and federalism choice of law--two areas of the constitutional law based primarily on international law. Pennoyer v. Neff, the Supreme Court precedent that forms the basis of personal jurisdiction in relation to the Due Process Clause, is based primarily on the writings of Joseph Story, who in turn imported his theory from the prevailing international law of his time, most notably as explained by Dutch jurist Ulrich Huber. Same is true with federalism choice of law. When the laws of the different states within the United States may apply to the single case, the process of choosing the applicable law is based on international law, which again dates back to Huber's theory on comity expounded by Joseph Story.
At the time of Joseph Story, the jurists of the Untied States were very much aware that they were using the international law to interpret the Constitution, not the U.S. law or even the English law. In the briefs for the U.S. Supreme Court in the 19th century, one can commonly spot citations to European legal scholars such as Huber, Emer de Vattel or Paulus Voet, to interpret the Constitution. Would Judge Gorsuch think these were all wrong? Given the long history of relying on international law to give meaning to the Constitution, one would think the proper originalist position is to insist on continuing to look at the international law in constitutional jurisprudence.