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March 14, 2005

Citations to Foreign Cases; Supreme Court Rationalizations

The use of citations to foreign cases, experience, and public opinion in Supreme Court opinions such as Kennedy's 2005 one on executing 17-year-olds is the same as the use of ethical pluralism that Richard Posner somewhere discusses. Posner is skeptical that a liberal education makes people more moral, because knowing more ethical systems gives a person more rationalizations for the evil things he wants to do. Knowing both Christian and Kantian ethics, he can make a Christian argument so he can do things the Kantians wouldn't allow, and a Kantian argument so he can do things the Christians wouldn't allow.

Similarly, if Judge Kennedy wants to do something like forbid states to execute 17-year-olds, and wants a legal peg to hang his personal opinions on, it helps a lot to be able to pick and choose among 100 countries' legal systems.

I think the main principle in writing a Supreme Court brief these days must be to (a) convince the judge that your side is right as a matter of policy, regardless of the law, and (b) give him a legal rationale, the persuasiveness of which is unimportant, on which to hang his opinion. It is very much like trying for jury nullification in a murder trial. You need to (a) convince the jury that the murdered man deserved to die anyway, and (b) make a legal argument such as temporary insanity or come up with some silly theory of a mysterious unknown murderer to provide a legal rationale.

Posted by erasmuse at March 14, 2005 08:48 PM

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