Asking for Directions: The Case for Federal Courts to Use Certification Across Borders

Abstract

For more than a decade, the bench, bar, and commentators have disagreed as to whether judges should look to decisions of international and foreign courts for guidance in resolving disputes that appear in U.S. courts. In 2003, Justice Scalia's dissent in Lawrence v. Texas warned darkly that the majority's citation to foreign and international sources was "[d]angerous dicta" that risked "impos [ing] foreign moods, fads, or fashions on Americans." The next year, then-Attorney General Alberto Gonzales objected that "[r]eliance on foreign law threatens to unmoor the court from the proper source of its authority. Members of Congress echoed those sentiments, some going so far as to threaten to impeach Justices who relied on such materials.