Harvard Law Review - Foreign Law and the Denominator Problem

Gannett House, built in 1838, is the oldest surviving
building on the Harvard Law School campus.
It has been home to the Harvard Law Review since 1925.

Harvard Law Review
Gannett House
1511 Massachusetts Ave
Cambridge, MA 02138

Editorial Office:
617-495-7889
617-496-5053 (fax)

Business Office:
617-495-4650
617-495-2748 (fax)

VOL. 119 · November 2005 · NO. 1

FOREIGN LAW AND THE DENOMINATOR PROBLEM
by Ernest A. Young [ Full Text ]

119 Harv. L. Rev. 148 (2005)

Before Roper v. Simmons, American states split thirty to twenty on the legitimacy of the juvenile death penalty. On the international plane, however, the United States stood alone in condoning the practice. The question is the appropriate significance of the latter fact for American constitutional doctrine. Although this issue falls within a much broader debate over references to foreign law by American courts, I want to focus on the narrow question that arises when such law is used to bolster claims of “consensus” against (or in favor of) a particular practice.
The Court’s jurisprudence of “cruel and unusual” punishments has both objective morality and practice components. The latter determines whether a consensus rejects a challenged practice by canvassing the practices of other relevant jurisdictions. Such an inquiry requires choices about which other jurisdictions are relevant. One might envision this universe of relevant jurisdictions as the denominator of a fraction, with the jurisdictions actually pursuing the challenged practice supplying the numerator. If the numerator is small relative to the denominator then the Court will condemn the practice as an outlier, out of step with “evolving standards of decency.”
Roper’s “denominator problem” concerned whether foreign jurisdictions should count in Eighth Amendment cases. Justice Kennedy’s claim that a domestic consensus rejected the juvenile death penalty was profoundly implausible given that twenty states retained the practice. But by shifting focus from the domestic to the international plane — where the United States stood as one jurisdiction against all the rest — the Roper majority made an implausible claim of “consensus” into a plausible one. Defenders of looking to foreign law typically describe that practice as a search for “persuasive authority” — an attempt, in Justice Breyer’s words, to “learn something” from a “judge in a different country dealing with a similar problem.” I argue here, however, that creating consensus by including foreign jurisdictions in the Eighth Amendment denominator goes considerably further and, in fact, gives the practices of those jurisdictions authoritative legal weight.
I have two objectives in this brief Comment. The first is to clarify how foreign law is used in cases like Roper and, consequently, the stakes in the debate over sources. The second is to sketch some cautions about expanding the denominator in such cases, although space will not permit much elaboration of these normative claims.

To view Harvard Law Review PDFs online you will need Adobe Acrobat Reader.
Download it here for free!