ProfessorBainbridge.com: Glendon on Foreign Law

Thanks to Professor Bainbridge for his post ProfessorBainbridge.com: Glendon on Foreign Law referring to Professor May Ann Glendon's interesting Washington Post op-ed on the citation of foreign law by the US Supreme Court.
Professor Glendon seeks to distinguish the legitimate use of foreign material from its illegitimate use. What she writes is this :
"What has been overlooked in these debates is the crucial difference between the legitimate use of foreign material as mere empirical evidence that legislation has a rational basis, and its use to buttress the court's own decision to override legislation."
Professor Glendon then illustrates the point by saying that the use of foreign material in Lawrence v. Texas 539 U.S. 558 (2003) was illegitimate whereas it was legitimate in Washington v. Glucksberg 521 U.S. 702 (1997).
Should the European Court of Justice cite US material ? Is Professor Glendon's distinction useful in the context of the ECJ ?

We've had a crack at the subject of foreign citations before in the context of the Supreme Court's judgment on direct interstate shipment of wine delivered on May 16th 2005 in Granholm v. Heald. On a related issue, both the blogs Opinio Juris and the Transatlantic Assembly had interesting posts on Justice Kennedy's remarks about citing international law in Supreme Court opinions. See also the brief response from Judge Posner in Legal Affairs to Professor Vicki Jackson's short article on the citation of foreign material in American judgments.

The ECJ does not cite foreign material (well, it does cite the European Court of Human Rights, but that is not really foreign, is it ?). It did not mention Granholm v. Heald in Case C-438/02 Krister Hanner (finding that the Swedish monopoly on the retail sales of medicines is contrary to Article 31 (1) EC.
It didn't mention the U.S. Supreme Court's Robinson v. Shell Oil Co. 519 U. S. 337 (1997) on post-employment discrimination in Case C-185/97 Belinda Jane Coote v. Granada Hospitality Ltd nor Philadelphia v. New Jersey 430 U.S. 141 (1977) in Case C-2/90 Commission v. Belgium (on whether garbage was goods for the purposes of free movement) even though those cases were debated.
Applying Professor Glendon's distinction to the ECJ, it would have been legitimate for the ECJ to cite Robinson v. Shell Oil Co. because it showed that the result it arrived at in Case C-185/97 had a rational basis. But it would not have been appropriate to refer to Philadelphia v. New Jersey in Case C-2/90 because the ECJ could have used it to strike down the Belgian legislation impeding transfrontier movement of waste. As it happens, the ECJ in Case C-2/90 ultimately upheld the Belgian law in issue because it found that the impediment to the free movement of waste was justified to protect the environment. Yet, does not Philadelphia v. New Jersey show that there was a rational basis for the ECJ to find that waste was "goods" within the meaning of the provisions on free movement?

Still, the ECJ has not been called parochial because it does not mention germane US Supreme Court opinions, even when they are cited by counsel and debated.

Comments

[DavidVH]

"The ECJ does not cite foreign material..."

An exception proving this rule, is that in C-377/98, the Advocate General's conclusions cited Diamond/Chakrabarty, 447 US 303 (1980) (the patentability of biotechnology).

Incidentally, the CFI recently made a lot of noise about "United Nations law" (T-306/01, paragraphs 1-4). It would be interesting to hear your take on this.

Regards,

DVH

[Bartolus]

Well spotted ! You are right that AG Jacobs alludes to Diamond/Chakrabarty in §36 of his Opinion. He refers to : "a decision by the US Supreme Court in 1980" but does not actually cite it. In fact, he uses it as just part of the narrative describing the development of biotech. So, it is used as an anecdotal rather than a legal source. He draws no legal consequences from the Supreme Court decision for the case at hand.
Incidentally, he also refers later on to a Venetian law of 1474.
The CFI case will be the subject of a future post.