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Foreign law - a friend of the court: an argument for prudent use of international law in domestic, human rights related constitutional decisions.

I. INTRODUCTION

The basic tenets of human rights law do not exist in the vacuum of individual nations and local constitutions. (1) Their persuasive impact transcends borders. (2) The broad, global response to basic human rights law has a symbiotic relationship with narrow, domestic human rights decisions. (3) Relying upon international human rights laws and norms as persuasive authority when deciding domestic legal issues should not only be permissible; it should be encouraged. (4)

This note argues that U.S. courts, particularly the Supreme Court, should utilize international law as persuasive authority within the context of human rights related decisions. (5) Part II examines seminal U.S. Supreme Court cases in which international human rights law was a persuasive force, and contrasts treatment of foreign law in the Canadian and Australian courts. (6) In Part III, this note traces the history of international human rights law as persuasive authority in both Supreme Court and state decisions. (7) Part IV provides an analysis of why and how international human rights laws should be used as persuasive authority in the United States. (8) Finally, Part V concludes that consideration of foreign law within the framework of human rights related legal opinions aids the constitutional decision-making process in a manner similar to that of the amicus brief. (9)

II. FACTS

The debate regarding what, if any, role international law should play in human rights cases in the United States sharpened in recent years. (10) The subject is prominently featured in recently decided U.S. Supreme Court cases, as well as the confirmation hearing of Justice Sonya Sotomayor. (11) In the last decade, three influential Supreme Court decisions applied international human rights norms as persuasive authority, though not without controversy or condemnation. (12) The debate over the use of international law in domestic courts is not unique to the United States. (13) Countries around the world, including Canada and Australia, grapple with the proper place for international human rights law within their domestic constitutional decision making processes. (14)

A. Impact of International Human Rights Law on Juvenile Life Without Parole Cases

In 2009 the Supreme Court heard arguments in two cases, Graham v. Florida and Sullivan v. Florida, to determine the constitutionality of a juvenile life without parole (JWOP) sentence. (15) During the progression of each case, the petitioner utilized international law to support the argument that a JWOP is unconstitutional in non-homicide cases. (16) The thrust of the international law argument in both cases was that petitioner's sentence is "unusual" because few states would issue the same punishment for a juvenile non-homicide offense, nor would the sentence be imposed anywhere else in the world. (17) In May 2010, the Graham Court employed the aforementioned international law analysis to support its conclusion that the sentencing practice is unconstitutional. (18)

The international law portion of the petitioner's argument in Graham proceeds in two distinct steps: 1) establish foreign law as a factor that the Court uses when deciding human rights related issues, specifically in Eighth Amendment cases and 2) use international legal practices to underscore the "unusual" nature of a JWOP sentence. (19) Petitioner pointed out that the Court considers several factors to determine whether a sentence violates the Eighth Amendment, including: "a comparison of the sentence imposed to evolving standards of decency as reflected in the laws and practices of the States and the international community." (20) The brief was clear that international law is just one part of the whole, stating that no factor is dispositive in the Court's decision on the proportionality of a JWOP sentence. (21) Petitioner's argument proved to be effective, as it mirrored the Court's subsequent reasoning in the case's ultimate disposition. (22)

Sullivan featured the international law argument in a far less prominent manner than in Graham. (23) Petitioner devoted just one paragraph to prevailing foreign legal standards. (24) Petitioner used international law to illustrate the stark difference in JWOP sentencing practices between the United States and the rest of the world. (25) The thrust of the international law argument in Sullivan revolved around the potential influence of international treaties. (26) Petitioner pointed out that JWOP sentences are banned by international conventions signed by almost every member of the world community of nations, with the exception of the United States. (27) The Court in Graham noted that while the U.S. is not bound by any international agreement prohibiting JWOP sentences, the existence of those agreements underscores international condemnation of the practice. (28)

B. Foreign Law Debate in Sotomayor Confirmation Hearings

During her confirmation hearings in July 2009, Justice Sonya Sotomayor was asked several times to explain her position on the use of foreign law as a part of the judicial decision making process. (29) Four different members of the Senate Judiciary Committee questioned Justice Sotomayor about the role of international law. (30) Throughout her testimony, Justice Sotomayor consistently maintained that foreign law could not be used as a holding, as precedent, or to interpret the Constitution or statutes. (31)

Justice Sotomayor's answers regarding whether foreign law should enter the mind of a judge on any level were predictably more evasive. (32) On more than one occasion, she characterized her opinion on the matter as in line with statements made by Justice Ruth Bader Ginsburg, suggesting judges use foreign law to build up their story of knowledge about legal thinking. (33) She did not, however, provide any concrete description of just how foreign law should impact a judge's decision-making process. (34) Senator John Cornyn presented an effective question by asking why one would cite foreign law at all if it is to be used only as a function of overall knowledge and not as part of a judge's legal determination of a case. (35) Justice Sotomayor responded that she had never cited foreign law and gave no opinion as to why other judges utilize international citations. (36)

C. United States Reliance on International Law in Seminal Human Rights Cases

In the last ten years, the U.S. Supreme Court relied on international human rights law as persuasive authority in three landmark cases. (37) In each case, the Court cited foreign authority in conjunction with a national human rights consensus in the United States, to bolster its decision holding a constitutional violation. (38)

The method used to incorporate international law in these decisions provides the basic framework for how foreign authority is used in U.S. case law today. (39)

1. Roper v. Simmons

The Court in Roper held that the execution of juveniles, individuals who were under eighteen years of age at the time they committed their capital offense, is a violation of the Eighth and Fourteenth Amendments. (40) In reaching this conclusion, the Court detailed evidence of a national consensus against the death penalty for juveniles and punctuated that argument by stating their decision is confirmed by the reality that the United States was the only remaining country to give official sanction to the juvenile death penalty. (41) As justification, the Court indicated that for at least fifty years it has referred to international authorities as instructive aids for its interpretation of the Eighth Amendment. (42) Writing for the majority, Justice Anthony Kennedy opined:
   It does not lessen our fidelity to the Constitution or our pride in
   its origins to acknowledge that the express affirmation of certain
   fundamental rights by other nations and peoples simply underscores
   the centrality of those same rights within our own heritage of
   freedom. (43)


While not the first Supreme Court case to employ international law in this fashion, Roper has become a lightning rod in the foreign law debate. (44) Roper is the primary source for advocates of incorporating international law into human rights related decisions. (45) Both Graham and Sullivan based their worldwide human rights argument almost exclusively on Roper's inclusive approach to foreign authority. (46) Roper underscored the sharply divided debate, highlighted by Justice Antonin Scalia's vigorous condemnation of the reliance on international law as persuasive authority:
   [T]he basic premise of the Court's argument--that American law
   should conform to the laws of the rest of the world--ought to be
   rejected out of hand. In fact the Court itself does not believe
   it.... To invoke alien law when it agrees with one's own thinking,
   and ignore it otherwise, is not reasoned decision-making, but
   sophistry. (47)


2. Atkins v. Virginia

In 2002, the Court in Atkins relied on international authority to support its conclusion that the Eighth Amendment prohibits executions of mentally retarded criminals. (48) As in Roper, the Atkins decision first described a national consensus condemning the practice and then noted that the world community also overwhelmingly disapproved. (49) The Court emphasized that no factor, particularly international authority, was dispositive in its decision. (50) The consistency of worldwide opinion served only to support the Court's conclusion that there is a consensus among foreign law, professional organizations, and state governments. (51)

3. Lawrence v. Texas

International human rights law was featured in Lawrence, supporting the Court's finding that making it a crime for same sex persons to engage in certain sexual conduct was unconstitutional. (52) In overturning its own precedent the Court reasoned: "the right petitioners seek in this case has been accepted as an integral part of human freedom in many other countries." (53) The Court's reasoning in Lawrence does not follow the same pattern as the prior two cases. (54) The Lawrence Court, while mentioning the international response to the issue, declined to utilize national consensus reasoning in support of its holding. (55)

D. The International Law Debate in Canada and Australia

The debate surrounding the use of foreign authority to support domestic legal decision-making is not exclusive to the United States. (56) In many countries the role of foreign authority is a settled matter, with some constitutions specifically requiring courts to adhere to provisions of international law. (57) In others, such as Canada and Australia, the role foreign authority plays is somewhat unclear, and examining the treatment of foreign sources in these countries could aid in finding common ground in the United States. (58)

1. Canada Leans Towards Incorporation of International Law

The Canadian approach regarding the incorporation of international law into the domestic decision-making process may be described as "dualist" in nature. (59) Dualism places international and domestic law in two distinct categories, allowing Canada to choose which aspects of international law it wishes to implement. (60) Though Canadian law may not specifically require the adoption of all rules of international law, recent authority does support that proposition. (61) In R. v. Hape, (62) the Supreme Court of Canada declared that Canada must adhere to the doctrine of adoption. (63) Adherence to this doctrine requires that international law be automatically incorporated into domestic law in the absence of conflicting legislation. (64) The decision further noted a well-established principle of statutory interpretation: that legislation is presumed to comply with and conform to international law. (65)

2. Australia and International Law--Not So Fast

While Canada is slightly more accepting of international law than the United States, Australia remains even less accepting than the U.S. (66) Australian courts bifurcate the acceptability of international law as persuasive authority in domestic cases. (67) The application of international norms to common law and statutory interpretation is widely accepted. (68) This legal evolution, however, has not reached constitutional interpretation. (69)

The debate in Australia as to whether it is permissible to use international law to aid in constitutional interpretation is similar to the discourse in the United States. (70) Australian Justice Michael Kirby is an outspoken advocate for foreign law's value as persuasive authority, particularly in human rights cases. (71) In Al-Kateb v. Godwin, (72) Justice Kirby and his colleague Justice Michael McHugh engaged in a back-and-forth about the role of international law reminiscent of the battle between Justice Kennedy and Justice Scalia in Roper. (73) In Australia, however, Justice Kirby's viewpoint on incorporation remains the minority opinion in constitutional interpretation cases. (74) The majority of Australian justices do not use international law to interpret the constitution, thereby regulating its status virtually impermissible. (75)

III. HISTORY

The persuasive effect of international law has been felt throughout the history of the United States. (76) Beginning with the Declaration of Independence, the laws of the United States were shaped and influenced by the international community. (77) Justice Harry Blackmun noted that John Jay, the first Chief Justice of the United States Supreme Court, stated that the country, "had, by taking a place among the nations of the earth, become amenable to the laws of nations." (78)

A. Tracing the Use of International Human Rights Law in Supreme Court Cases

In 1958, the Court in Trop v. Dulles (79) held that the Eighth Amendment must "draw its meaning from the evolving standards of decency that mark the progress of a maturing society." (80) This decision provided the foundation for future decisions to apply international human rights law as persuasive authority, particularly in Eighth Amendment cases. (81) Trop held that denationalization is unconstitutional, citing the "virtual unanimity" with which the international community condemned the practice. (82) Throughout the next half century, the Court routinely enlisted the persuasive impact of international law to support various human rights related decisions. (83)

In 1977, the Court in Coker v. Georgia (84) applied international law when determining that the death penalty for a rape that did not result in murder was excessive. (85) Five years later in Enmund v. Florida, (86) the Court found the death penalty for a felony murder case to be cruel and unusual punishment, and noted that the practice was abolished or severely restricted in other countries. (87) In 1988, a plurality in Thompson v. Oklahoma (88) found the death penalty for defendants younger than sixteen years of age to be unconstitutional. (89) There, the Court cited the abolition of juvenile death sentences by leading nations in Western Europe. (90) Finally, in a concurring opinion in 2003, Justice Ginsberg referenced provisions in an international convention as a basis for holding that a school's affirmative action program was not at odds with the Constitution. (91)

B. International Law in State Court Decisions

According to a 2008 study, the legal systems of thirty-five states consider international human rights law as persuasive authority. (92) Recently the California Supreme Court cited international law in a decision declaring marriage to be a fundamental interest of the people and not the state. (93) In considering the previously mentioned Graham and Sullivan, the Florida District Court of Appeal not only considered foreign authority, it deemed the international law argument to be the petitioner's most effective. (94) Since 2000, courts in Maryland and Montana, among others, have applied international human rights law as persuasive authority when interpreting state constitutions, statutes and common law. (95)

IV. ANALYSIS: THE 'WHY AND HOW' OF INTERNATIONAL LAW AND ITS APPLICATION TO DOMESTIC CONSTITUTIONAL INTERPRETATION

Judicious consideration of international law as persuasive authority should be a viable aspect of judicial review and constitutional interpretation, specifically within the context of human rights related cases. (96) Foreign authority is not binding and cannot be the sole basis for an American "constitutional decision." (97) International norms can, however, inform the constitutional jurisprudence in an effective and permissible manner. (98) Similar to an amicus brief, international law provides judges with a unique and important perspective on the issue in question. (99) Foreign authority used in conjunction with a 'national consensus' argument provides judges with the opportunity to reach and present a thoroughly analyzed decision. (100) As an aid in constitutional interpretation, international law is particularly germane to human rights related cases. (101)

A. Human Rights Related Cases

International law is best, and perhaps uniquely suited, for human rights issues arising from constitutional cases. (102) The United States is a worldwide leader in the promotion of human rights, a role deeply rooted in the ideals the framers embedded within the Bill of Rights. (103) The Constitution's codification of human rights is arguably the United States' most precious export to the global community. (104) Examining and referencing the effects of this export upon foreign legal systems helps judges ensure that U.S. constitutional interpretation reflects society's evolving standards of decency. (105) The symbiotic relationship between domestic and international human rights law justifies prudent use of foreign authority in the analysis of certain constitutional questions. (106)

B. United States Human Rights Policy

The United States lists the promotion of Human Rights as a fundamental and central goal of its foreign policy. (107) This position is based on the foundational role human rights played in the establishment of the United States and the Constitution. (108) To further human rights worldwide the U.S. State Department "hold[s] governments accountable to their obligations under universal human rights norms and international human rights interests." (109) The U.S. State Department, as the representative of the American people to the world, not only recognizes the global reach of human rights law, it purports to hold other nations to U.S. standards of human rights, rights based upon our domestic constitutional law. (110)

International human rights law is uniquely situated. (111) The U.S. helps shape global human rights standards based on the principles and values found within our Constitution. (112) The impact of these exported norms reverberates in societies across the globe. (113) When grappling with new and evolving human rights issues, our judges must have the opportunity to look beyond our borders to inform their decision-making. (114) It is within the narrow parameters of human rights law that consideration of foreign authority in domestic constitutional law cases finds its greatest justification. (115)

C. The Eighth Amendment

International legal authority is particularly applicable to human rights issues arising from Eighth Amendment jurisprudence. (116) Simply put, international law may be used to accentuate the "unusual" nature of a certain punishment. (117) That a certain punishment is an international oddity does not render it unconstitutional. (118) Joined with evidence that the punishment is unusual within the United States, however, the foreign authority underscores the atypical nature of the sentence. (119) Human rights related cases, specifically those involving the Eighth Amendment, provide a permissible and justifiable occasion to use foreign law to inform the domestic legal decision-making process. (120)

D. Amicus Brief v. International Law--What's the Difference?

Amicus briefs are filed in the vast majority of Supreme Court cases. (121) The amicus process allows one with strong interest or expertise in the subject matter of a particular case, to petition the court in an effort to further inform a judge on the topic at issue, something the parties may not have the opportunity or ability to provide. (122) The Supreme Court's official amicus brief rules state: "An amicus curiae that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court." (123) International law can and should be employed as a pseudo amicus brief; non-binding, persuasive authority used to provide a broad perspective and to enhance a judge's knowledge of a particular subject. (124)

An amicus brief is not binding authority and may not represent a popular or professional consensus opinion. (125) The Supreme Court in Graham and Sullivan accepted an amicus brief from thirteen amici. (126) A justice may choose to read or not read, accept or reject, cite or avoid the information contained in these briefs. (127) There is no appreciable difference between a justice considering and applying the ideas contained in an amicus brief and a judge's use of foreign law to achieve the same purpose. (128) Both are persuasive, non-binding authorities; both provide the judge with a broader perspective and deeper understanding of an issue; and both, if used properly, aid judicial review in effectively the same manner, without causing a constitutional crisis. (129)

Critics could argue that neither amicus briefs nor international law have a justifiable role in judicial review. (130) The presence of amici in Supreme Court filings, however, is more prevalent than ever and does not appear to be dissipating. (131) International opponents may also assert amicus briefs are acceptable only to the extent they further domestic, democratic and constitutional values. (132) A judge may rely on a brief as persuasive authority as long as the amici reflect intra-national constitutional arguments. (133) There are no provisions within the Court's amicus rules that prohibit international organizations from filing a brief, or that disallow international law arguments within the briefs themselves. (134) The proposition that a justice may not look to relevant foreign authority on its own, but that the Court can and will accept amicus briefs from international organizations or briefs that contain international law arguments is incongruous at best. (135)

Amicus participation is a common and accepted method of ensuring thorough judicial review of constitutional questions. (136) The briefs are not used as binding authority and do not supplant fundamental, precedential constitutional values or the will of the American people. (137) They simply place a justice in the best position to make a well-reasoned and proper decision. (138) International law, perhaps a more instructive source than an amicus brief, must be afforded the same opportunity within the same parameters. (139)

E. The Fifty-First State

The most effective and appropriate way for judges to apply foreign law to domestic human rights decisions is to treat the authority as if it were a virtual "fifty-first state." (140) Within the outline of the traditional modalities of constitutional interpretation, the Supreme Court often examines state judicial and legislative trends relating to the issue at hand. (141) The Court, in conjunction with state action, also gives credence to whether a national, societal consensus has been reached. (142) When dealing with constitutional questions related to global human rights issues, the Court should view international law as one "state" in its national consensus analysis. (143)

F. Adding International to the National Consensus

The vast majority of modern cases employing the use of international law also contain the national consensus argument. (144) In these situations, the Court typically articulates its reasons for concluding that a national consensus exists, and then follows that reasoning with the international law reference. (145) The foreign authority confirms a broader consensus exists. (146) Critics take issue with the appropriateness of international validation of an intra-national accord. (147) The validation or confirmation issue is eliminated when the fifty-first state technique is applied. (148) Now, the Court is no longer using foreign authority to justify domestic opinion, but merely as another brick in the foundation of the consensus argument. (149)

Critics of the incorporation of international law contend that the national consensus argument is only proper because it is rooted in the idea of popular sovereignty, and therefore consistent with the Constitution. (150) As a result, opponents argue, making foreign authority a part of the equation removes power from the American people. (151) This is not true if the Court considers international law as one part of its examination of the legislative, judicial and popular opinion regarding the pending legal issue. (152) If a national consensus exists and international authority reaches a different conclusion, domestic law trumps because international law is equivalent to one "state" with a contrasting opinion. (153) For international authority to have a marginally persuasive effect, it must function within the national consensus. (154) Regardless, neither represent binding authority, and both are used primarily as educational aides in the judicial review process. (155)

The Court already looks to the practices of individual states as persuasive authority, thus examining international law as just one more "state" promotes a thorough and reasoned decision. (156) Justice Scalia worries, however, that if allowed to use international law, judges will pick and choose the best supporting foreign authority while ignoring opposing international law. (157) This problem exists, however, with all forms of persuasive, non-binding authority. (158) Judges choose the legislation, historical perspective or treatise that best suits their point of view, or debate what constitutes a consensus while minimizing sources that argue to the contrary. (159) Society expects judges to make decisions based on all perspectives and evidence. (160) There is no reason to believe Supreme Court justices will not take care in considering the scope of the international law they choose to cite. (161)

G. International Law and Prudential Considerations

One of the traditional modalities of constitutional interpretation is the prudential argument. (162) Within this analysis the Court balances the costs and benefits of a particular rule by examining the potential, far-reaching effects of its decision. (163) That the Court employs a line of reasoning that considers the outward ramifications of its decisions further justifies the consideration of international law as persuasive authority. (164)

Technology has made the world "smaller" and domestic judicial decisions have global consequences that affect the United States. (165) Thus, when considering a prudential argument, the Court must balance the costs and benefits as they apply to the international community. (166) In doing so, it is appropriate to consider international law as persuasive authority during the decision-making process. (167) This is particularly true in the area of human rights law. (168) Human rights are a global issue. (169) Prudentially speaking, judicial decisions that apply human rights norms must, by definition, consider foreign authority. (170) Consideration of international law as persuasive authority allows Justices to make more prudentially sound decisions. (171)

V. CONCLUSION

Prudent use of international law as persuasive authority within the context of domestic, human rights related, constitutional interpretation affords Justices the opportunity to make a thorough and informed decision. (172) In order to remain at the forefront of human rights law, Justices must have the option to examine the evolution of such law worldwide. (173) This is particularly true in Eighth Amendment decisions, where one must determine the "unusualness" of a punishment. (174) Supreme Court Justices should contemplate international law as persuasive, non-binding authority, just as they would an outside organization's amicus brief. (175) In an era of globalization, the persuasive impact of international human rights law and norms cannot be ignored. (176) While consideration of foreign law is a permissible aspect of constitutional interpretation, there is no requirement that a Justice be persuaded by its arguments. (177) International law must remain non-binding. (178) It must also take its place as the ultimate amicus brief, part of the foundation of knowledge that guides judicious constitutional decision-making. (179)

(1.) See The Hon. Justice Michael Kirby, Former Justice of the High Court of Australia, International Law--Impact on National Constitutions, Seventh Annual Grotius Lecture before American Society of International Law (March 29, 2005), in 21 AM. U. INT'L L. REV. 327, 329 (2006) (setting forth argument for use of international law in constitutional interpretation). Until February 2, 2009, Michael Kirby was one of seven justices on the High Court of Australia. The Honorable Michael Kirby AC CMG--Biography, http://www.michaelkirby.com.au/index.php?option=com_content&view=article&i d=67&Itemid=2 (last visited Oct. 5, 2010) (detailing career of Justice Michael Kirby). At the end of his tenure, Justice Kirby was the longest serving judicial officer in Australian history, holding various positions from 1975--2009. Id.

(2.) See Brief for Amnesty International et al. as Amici Curiae in Support of Petitioners, Graham v. Florida, 130 S. Ct. 2011 (2010) (No. 08-7412), 2009 WL 2219304 at *2 (arguing United States Supreme Court must consider international human rights norms). Amnesty International, in conjunction with twelve other international human rights organizations, submitted this amicus brief on behalf of the appellants in the Supreme Court cases Graham v. Florida and Sullivan v. Florida. Id. at *1. The amici urged the court to consider international law and opinion when determining whether a juvenile life without parole (JWOP) sentence violates the Eighth Amendment's cruel and unusual punishment clause. Id. The amici contend that international standards "provide an important indicator of evolving standards of decency, which in turn illuminate the contours of acceptable conduct under the Eighth Amendment." Id. at *1-2; see also Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 Fla. St. U. L. Rev. 315 (2008) (emphasizing importance of amicus system). Garcia argues for minimal limitation of amicus participation by district court judges and discusses appropriate timing of amicus filings. See Garcia, supra at 317. The note quotes a study tracing the increase in the use of amicus filings in Supreme Court cases. Id. at 316. The study indicates amicus briefs were filed in 39% of cases from 1953-1969, 67.5% of cases from 1969-1986 and in 83% of cases from 1986-1997. Id. at 316-17; see also JUDITHANNE SCOURFIELD MCLAUCHLAN, CONGRESSIONAL PARTICIPATION AS AMICUS CURIAE BEFORE THE U.S. SUPREME COURT 28 (2005); PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 12-22 (1991) (detailing modalities of constitutional interpretation). Bobbitt details six modalities used by judges when interpreting the Constitution: historical, textual, doctrinal, structural, ethical and prudential. BOBBITT, supra, at 13; see also HUMAN RIGHTS POLICY STATEMENT, U.S. DEP'T OF STATE, http://www.state.gov/g/drl/hr/ (last visited Oct. 5, 2010) [hereinafter U.S. HUMAN RIGHTS POLICY] (detailing U.S. foreign policy regarding protection of human rights). The U. S. State Department considers human rights an important national interest and aims to:
   Hold governments accountable to their obligations under universal
   human rights norms and international human rights instruments;
   Promote greater respect for human rights, including freedom from
   torture, freedom of expression, press freedom, women's rights,
   children's rights, and the protection of minorities; Promote the
   rule of law, seek accountability, and change cultures of impunity;
   Assist efforts to reform and strengthen the institutional capacity
   of the Office of the UN High Commissioner for Human Rights and the
   UN Commission on Human Rights; and Coordinate human rights
   activities with important allies, including the EU, and regional
   organizations.


Id.

(3.) See Kirby, supra note 1, at 3 (acknowledging increasingly prominent role international law must play in constitutional jurisprudence).
   In a time of cyberspace, genomics, satellites, jumbo jets and
   global perils such as AIDS and SARS, continuing to view
   international law and municipal law as almost wholly separate is as
   inappropriate to our era as was the notion that the law of nations
   was derived from God's will....


Id.

(4.) See Roper v. Simmons, 543 U.S. 551, 575-76 (2005) (relying on international human rights law in deciding that execution of juveniles under age 18 is unconstitutional). The Roper Court indicated it has long referred to international human rights authorities as instructive for interpreting the cruel and unusual punishment clause of the Constitution. Id. at 575; see also Brief for the Petitioner, Graham v. Florida, 130 S. Ct. 2011 (2010) (No. 08-7412), 2009 WL 2159655 at *29 (relying on international norms to argue for reversal of JWOP sentence); Brief for the Petitioner, Sullivan v. Florida, cert. dismissed, 130 S. Ct. 2059 (2010) (No. 08-7621), 2009 WL 2159656 at *8 (similarly arguing for reversal of JWOP sentence).

(5.) See infra Part V (concluding U.S. courts should treat international law as non-binding persuasive authority similar to amicus briefs).

(6.) See infra Part II (discussing role of international law in U.S. human rights cases, Justice Sotomayor's confirmation hearing and Canadian and Australian legal systems).

(7.) See infra Part III (tracing history of use of international law in domestic cases in U.S.).

(8.) See infra Part IV (offering support for utilizing international law as persuasive authority and pseudo-amicus briefs in domestic human rights cases).

(9.) See infra Part V (concluding use of international law should be permissible in domestic, human rights related decisions).

(10.) See, e.g., Supreme Court Justices Antonin Scalia and Stephen Breyer, Constitutional Relevance of Foreign Court Decisions, Discussion Before American University Washington College of Law (Jan. 13, 2005) (illustrating sharp divide in foreign authority debate); Roger P. Alford, Four Mistakes in the Debate on "Outsourcing Authority, " 69 ALB. L. REV. 653 (2006) (discussing debate on use of international law in domestic jurisprudence); Eyal Benvenisti, Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts, 102 AM. J. INT'L L. 241 (2008) (arguing reference to international law empowers domestic democratic processes); Comment, The Debate Over Foreign Law in Roper v. Simmons, 119 HARV. L. REV. 103 (2004) (detailing divergent points of view on foreign law's relevance in landmark human rights case); John O. McGinnis & Ilya Somin, Democracy and International Human Rights Law, 84 NOTRE DAME L. REV. 1739 (2009) (examining role of international human rights law in relation to domestic law); Vincent J. Samar, Justifying the Use of International Human Rights Principles in American Constitutional Law, 37 COLUM. HUM. RTS. L. REV. 1 (2005) (arguing relevance of international law when interpreting U.S. Constitution).

(11.) Brief for the Petitioner, Graham, supra note 4, at *65 (using foreign law in brief to Supreme Court); Brief for the Petitioner, Sullivan, supra note 4, at *55 (using foreign law in brief to Supreme Court); Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, To Be An Associate Justice of the Supreme Court of the United States: Hearing before the S. Comm. on the Judiciary, 111th Cong. 132 (2009) [hereinafter Sotomayor confirmation hearing], available at http://www.gpo.gov/fdsys/pkg/CHRG-111shrg56940/pdf/CHRG-111shrg56940.pdf (last visited Nov. 12, 2010) (explaining her position on role of international law in domestic legal decision-making).

(12.) Roper, 543 U.S. at 567, 578; Atkins v. Virginia, 536 U.S. 304, 316 (2002) (applying international law in analysis of constitutionality of death penalty for mentally retarded defendants); Lawrence v. Texas, 539 U.S. 558, 576-77 (2003) (considering international norms in holding Texas sodomy law unconstitutional).

(13.) See The Hon. Michael Kirby, Constitutional Law and International Law: National Exceptionalism and the Democratic Deficit?, 98 GEO. L.J. 433 (2010) (detailing extent to which countries are discussing the use international law in domestic legal opinions). Justice Kirby's lecture at Georgetown University analyzes the relationship between international law and domestic constitutional law. Id. at 439, 442-51 (providing a breakdown of case law in both Australia and the United States). American exceptionalism is a primary reason for rejection of foreign legal materials in domestic decision-making. Id. at 451.
   Intertwined with (U.S.) engagement with the world, there has always
   been a notion of exceptionalism--isolationism and hostility, or
   indifference to aspects of international law which is thought to
   cut across U.S. laws and interests, and the determination to
   achieve the protection of those interests by the United States,
   currently the most powerful nation on Earth.


Id. at 452. The concern of the democratic deficit is another argument against foreign law incorporation. Id. at 455.
   This is an objection common to the hesitation of U.S. and
   Australian jurists when analogies to the resolution of a municipal
   law problem are propounded with reference to the principles of
   foreign or international law as expressed in courts, tribunals, and
   other bodies outside the judicature of the nation-state.


Id.

(14.) R. v. Hape, [2007] 2 S.C.R. 292 (Can.) (reaffirming rules of international law have force of law in Canada); Al Kateb v Goodwin, (2004) 219 C.L.R. 562, 564 (Austl.) (featuring debate about role of international law in Australian constitutional interpretation); see also Armand de Mestral & Evan Fox-Decent, Rethinking the Relationship Between International and Domestic Law, 53 McGILL L.J. 573 (2008) (analyzing role of international law in domestic Canadian legal decisions).

(15.) Brief for Petitioner, Graham, supra note 4, at *64 (introducing concept of international law argument); Brief for Petitioner, Sullivan, supra note 4, at *55 (setting forth basis for why Supreme Court should consider international law); Transcript of Oral Argument, Graham v. Florida, 130 S. Ct. 2011 (2010) (No. 08-7412), 2009 WL 3731318 (debating JWOP sentence with no discussion of international law); Transcript of Oral Argument, Sullivan v. Florida, cert. dismissed, 130 S. Ct. 2059 (2010) (No. 08-7621), 2009 WL 3750775 (debating JWOP sentence with no discussion of international law).

(16.) Brief for Petitioner, Graham, supra note 4, at *64; Brief for Petitioner, Sullivan, supra note 4, at *55; see also Petition for Writ of Certiorari, Graham v. Florida, 130 S. Ct. 2011 (2010) (No. 08-7412), 2008 WL 6031405 at *5 (arguing Supreme Court must consider international law and grant certiorari); Petition for Writ of Certiorari, Sullivan v. Florida, cert. dismissed, 130 S. Ct. 2059 (2010) (No. 08-7621), 2008 WL 6031406 passim (relying on international law to bolster argument); Petitioner's Brief on Jurisdiction, Graham v. State, 990 So.2d 1058 (Fla. 2008) (No. SC08-1169), 2008 WL 2952216 at *9-10 (using international law argument to persuade Florida Supreme Court to grant certiorari). At the state level, the Graham petitioner argued that because the international community condemned Florida's practice of imprisoning juveniles for life without parole, Florida's highest court should decide whether the practice is constitutional. See Petitioner's Brief on Jurisdiction, Graham, supra at *9.
   If Florida is to have a rule of law that is disapproved by
   virtually the entire world as inhumane, this Court, as the highest
   court of this State, should examine the constitutional bans on
   cruel and unusual punishment and determine whether they truly allow
   this State to engage in a practice condemned by modern,
   international standards of humanity.


Id. at *10; see also id. at *1 (noting that decisions below rejected international law argument while upholding JWOP sentence on jurisdictional grounds); Graham v. State, 982 So.2d 43 (Fla. Dist. Ct. App. 2008) (affirming imposition of life sentence for probation violation); State v. Graham, No. 16-2003-CF-11912-AXXX-MA, 2006 WL 6283414 (Fla. Cir. Ct. May 25, 2006) (trial order revoking probation). The District Court of Appeal of Florida similarly rejected the petitioner's international law argument in Sullivan. See Sullivan v. State, 987 So.2d 83 (Fla. Dist. Ct. App. 2008) (per curiam affirmation of conviction).

(17.) Brief for the Petitioner, Graham, supra note 4, at *64; Brief for the Petitioner, Sullivan, supra note 4, at *55

(18.) 130 S. Ct. 2011, 2033 (2010) (holding JWOP sentence for non-homicide offense is unconstitutional). The Court noted that the United States, in condoning JWOP sentences for non-homicide offenses, takes part in a practice rejected by the rest of the world. Id. In American courts, foreign authority is not dispositive, but it is also not irrelevant. Id. The Court further cited its long tradition of looking to international law "for support for its independent conclusion that a particular punishment is cruel and unusual." Id. Following justification for the incorporation of foreign legal decisions in its reasoning, a detailed, global consensus against JWOP sentences in non-homicide cases was included in the decision. Id. at 2033-34. Because Graham and Sullivan both dealt with JWOP sentences, the Court chose to only issue an opinion in Graham and to dismiss its grant of certiorari in Sullivan as improvident. See id. ; Sullivan v. State, 987 So.2d 83 (Fla. Dist. Ct. App. 2008), cert. dismissed, 130 S. Ct. 2059 (2010).

(19.) See Brief for Petitioner, Graham, supra note 4, at *24 (synthesizing international law argument).

(20.) Id. at *31 (mentioning role international sentencing law played in past Supreme Court decisions). In the first portion of the argument section, Petitioner pointed out that the Court considers several factors to determine if a sentence violates the Eighth Amendment. Id. The Petitioner cited Roper as primary precedent for the Court's use of international law among the deciding factors in Eighth Amendment decisions. See id.

(21.) See id. (explaining how Court should employ international law). Petitioner closed this portion of the argument by declaring that ultimately the Court must bear its own judgment on whether there is an Eighth Amendment violation. Id. After establishing that the Supreme Court has looked to the laws and practices of the international community in deciding past Eighth Amendment cases, Petitioner's next task was to explain why such foreign authority supports his case against juvenile life without parole sentences. Id. at *33-34. The argument referenced the "unusual" portion of the constitutional prohibition of cruel and unusual punishment. Id. at 54.

(22.) Graham, 130 S. Ct. at 2034 (analyzing and accepting Petitioner's international law argument).
   The Court has treated the laws and practices of other nations and
   international agreements as relevant to the Eighth Amendment not
   because those norms are binding or controlling but because the
   judgment of the world's nations that a particular sentencing
   practice is inconsistent with basic principles of decency
   demonstrates that the Court's rationale has respected reasoning to
   support it.


Id.

(23.) Brief for the Petitioner, Sullivan, supra note 4, at *55-56 (utilizing international law argument in limited fashion).

(24.) Id. (discussing international law argument). While petitioner did cite Roper, he failed to explain why the Supreme Court should consider international standards as a persuasive argument against a juvenile life without parole sentence. Id. at *28. In this particular portion of the brief, the petitioner used Roper only to support the assertion that the U.S. is alone in permitting this type of punishment. Id. He did not acknowledge that the Supreme Court used this line of reasoning in Roper when the Court decided the juvenile death penalty was unconstitutional. Id.

(25.) See Brief for the Petitioner, Sullivan, supra note 4, at *4.

(26.) Id. (arguing international conventions and treaties are at odds with U.S. JWOP sentencing).

(27.) Id. at *56 (detailing potential treaty violations). Sullivan referenced Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR) as a treaty to which the U.S. is a signatory. Id. Petitioner in Sullivan argued that U.S. JWOP sentencing violates the treaty's ban on juvenile life without parole sentences. Id.

(28.) Graham, 130 S. Ct. at 2034 (indicating issue in case is not whether international law prohibits imposition of sentence). The Court used international treaties and accords, such as the United Nations Convention on the Rights of the Child, to bolster its argument that JWOP life sentences represent a cruel and unusual punishment. Id.

(29.) Sotomayor confirmation hearing, supra note 11, at 132-33 (responding to questions regarding foreign law during confirmation hearing).

(30.) Id. (evaluating Justice Sotomayor's position on use of international authority in domestic cases). Foreign law related questions came from Senator Charles Schumer (D-NY), Senator Tom Coburn (R-OK), Senator Jon Kyl (R-AZ), and Senator John Cornyn (R-TX). Id. Only Senator Schumer appeared to approve of the use of international law to aid in domestic legal decision-making. Id.

(31.) Id. at 349 (responding to questions about her potential use of international authority). Senator Coburn questioned Judge Sotomayor about foreign law on two separate occasions, over two days. See Sotomayor confirmation hearing, supra note 11, at 348, 442. Senator Coburn sought to move past situations where judges are required to look to international law. Id. at 349 (inquiring as to possible authority allowing use of foreign laws). Judge Sotomayor reiterated her stance that foreign law cannot be used as a holding or precedent and that she has never used it to interpret the Constitution or American statutes. Id. Senator Coburn then directed Judge Sotomayor to past statements she made regarding the use of foreign law in which she stated there is nothing in the American legal system that prevents judges from considering and using those ideas. Id. at 348. Judge Sotomayor reconciled the apparent discrepancy between those past opinions and the position she proclaimed during the hearings by stating that in her speech she was pointing out a public misunderstanding of the word "use." Id. at 349. Judge Sotomayor declared that judges use 'foreign ideas' to educate themselves about legal thinking and consider various approaches. Id. In her experience, when a judge cites foreign law it is as a comparison to American law and it is not used to "compel a result." Id.

(32.) See Sotomayor confirmation hearing, supra note 11, at 349-50 (attempting to explain position on foreign law use in American jurisprudence).

(33.) Id. at 133 (justifying citation of international law generally). Responding to a question from Senator Schumer, Justice Sotomayor clarified her position on Justice Ginsberg's "story of knowledge" explanation:
   For judges, that includes law review articles. And there are some
   judges who have opined negatively about that. OK? You use decisions
   from other courts. You build up your story of knowledge. It is
   important in the speech I gave, I noted and agreed with Justices
   Scalia and Thomas that one has to think about this situation very
   carefully because there are so many differences in foreign law from
   American law.


Id.

(34.) Id. (omitting any specific guidelines for citation of international authority).

(35.) Id. at 464 (challenging Sotomayor's position). "Well, Your Honor, why would a judge cite foreign law unless it somehow had an impact on their decision on their decision making process?" Id.

(36.) Id. (responding to Senator Cornyn).
   I don't know why other judges do it. As I explained, I haven't. But
   I look at the structure of what the judge has done and explained
   and go by what that judge tells me. There are situations--that's as
   far as I can go.


Id.

(37.) See supra note 12 (noting three Supreme Court decisions applying international human rights authority).

(38.) See Roper, 543 U.S. at 575 (noting international community's unanimous rejection of juvenile death penalty); Atkins, 536 U.S. at 316 n.21 (citing EU amicus brief opposing death penalty for mentally retarded offenders); Lawrence, 539 U.S. at 576-77 (describing international treatment of legality of consensual homosexual conduct); see also Linda M. Keller, Using International Human Rights Law in U.S. Courts: Lessons From the Campaign Against the Juvenile Death Penalty, in WHAT IS RIGHT FOR CHILDREN?: THE COMPETING PARADIGMS OF RELIGION AND HUMAN RIGHTS 84 (Martha Albertson Fineman & Karen Worthington eds., 2009) (discussing movement of international law to center of human rights debate). Keller traces the use of international law within the context of the debate over the juvenile death penalty. Id. Keller notes that in most modern human rights cases that use foreign authority, the Court first asserts that a national consensus on the issue has developed. Id. at 85. But see Zachary Larsen, Discounting Foreign Imports: Foreign Authority in Constitutional Interpretation and the Curb of Popular Sovereignty, 45 WILLAMETTE L. REV. 767, 794-97 (2009) (arguing use of international law is an affront to popular sovereignty). Larsen argues that use of foreign authority in domestic decision-making, in any form, takes power away from the American people and should be rejected. Id.

(39.) See Roper, 543 U.S. at 558; Atkins, 536 U.S. at 304; Lawrence, 539 U.S. at 558 (providing framework for use of foreign authority).

(40.) Id. at 578-79 (affirming Missouri Supreme Court judgment setting aside juvenile death sentence).

(41.) Id. at 564-78 (referencing national and international condemnation of juvenile death sentence). The Court noted that thirty states do not allow juvenile executions, though of those thirty, twelve do not utilize the death penalty under any circumstances. Id. at 559-60 (quoting State ex rel. Simmons v. Roper, 112 S.W.3d 397, 399 (Mo. 2003)). In terms of the international consensus, the Court stated that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Cong, and China. Roper, 543 U.S. at 577. Subsequently, each of the aforementioned countries abolished the sentence or publicly decried the practice. Id.

(42.) Id. at 575 (citing precedent establishing persuasive use of international law). The Court went on to cite five opinions in which international human rights law played a prominent role in explicating Eighth Amendment jurisprudence. Id. at 575-76.

(43.) Id. at 578 (justifying consideration of foreign law in domestic legal reasoning).

(44.) See, e.g., Kirby, supra note 1 (identifying Roper as paradigmatic of international law debate). Justice Kirby cites Roper to characterize the debate in the United States surrounding the inclusion of international human rights law in constitutional interpretation. Id.

(45.) See, e.g., Brief for the Petitioner, Graham, supra note 4, at *65-66 (citing Roper as key precedent for considering international law); Brief for the Petitioner, Sullivan, supra note 4, at *55 (using Roper as primary precedent for foreign authority argument); Petitioner's Brief on Jurisdiction, Graham, supra note 16, at *6-10 (citing Roper in state-level international law argument).

(46.) See Brief for the Petitioner, Graham, supra note 4, at *5 (utilizing Roper as predominant source in justifying inclusion of international law); Brief for the Petitioner, Sullivan, supra note 4, at *28 (applying Roper standard to explain inclusion of foreign authority). At every stage of the process, Graham and Sullivan rely on Roper as the central precedential case justifying the use of international law to interpret the Constitution. See Brief for the Petitioner, Graham, supra note 4, at *5; Brief for the Petitioner, Sullivan, supra note 4, at *28.

(47.) Roper, 543 U.S. at 624, 627 (Scalia, J., dissenting) (rejecting use of international law as persuasive authority).

(48.) 536 U.S. at 316 (reversing judgment of Virginia Supreme Court).

(49.) Id. at 315-16 (describing national and international condemnation of execution of mentally retarded criminals). In addition to a national consensus against the practice, there is broad social and legislative agreement as well. Id.

(50.) Atkins, 536 U.S. at 315-16 (noting several reasons for decision). After citing both national and international consensus against execution of mentally retarded individuals, the Court also delves into discussion about mental culpability and the fundamental justifications for the death penalty, including deterrence and retribution. Id. at 319.

(51.) See id. at 314-17 (noting various groups condemning the death sentence for mentally retarded offenders). Opinions of the psychology community, a diverse range of religious groups and nations that share a common heritage with the United States were considered. Id. at 316 n.21.

(52.) Lawrence, 539 U.S. at 572-73 (discussing international approach to similar issue). Lawrence forcefully rejected a prior decision upholding similar sodomy laws, finding significant flaws in the earlier Court's reasoning. Id. (overturning previous Supreme Court precedent); see also Bowers v. Hardwick, 478 U.S. 186, 196 (holding same sex sodomy laws to be constitutional).

(53.) Lawrence, 539 U.S. at 577 (recognizing international law as persuasive authority). "There has been no showing that in this country the governmental interest in circumscribing personal choice somehow more legitimate or urgent." Id. (comparing domestic interest to international human rights).

(54.) Compare id., with supra notes 33, 40 and accompanying text (using national consensus as springboard for international law argument).

(55.) Lawrence, 539 U.S. at 577.

(56.) See Kirby, supra note 1, at 6-8, 11-13, 25-30 (detailing the foreign authority debate in various countries); see also The Bangalore Principles, 62 Austl. L.J. 531 (1988) (presenting principles of international human rights decisions in Australia and Great Britain).

(57.) See Kirby, supra note 1, at 4 (noting countries that incorporate international law into decision-making). The national constitutions of India, Papua-New Guinea and the Republic of South Africa expressly require courts to regard international law. Id. at 4 n.7; see, e.g., INDIA CONST. art. 51(c); CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA [section] 39(3); S. AFR. CONST. 1996 [section] 39(1)(b).

(58.) See Kirby, supra note 1, at 35 (examining arguments against interpretive incorporation).

(59.) See Mestral & Fox-Decent, supra note 14, at 581-82 (setting forth dualist argument). A dualist model that allows for international and domestic law to operate separately may be motivated by a desire to protect Canadians from intrusion of international law. Id.; see also Anne Bayefsky, International Human Rights in Canadian Courts, in ENFORCING INTERNATIONAL HUMAN RIGHTS IN DOMESTIC COURTS 295, 296 (Benedetto Conforti and Francesco Franconi eds., 1997) (pointing out Canadian position to utilize international law); Gerard La Forest, The Expanding Role of the Supreme Court of Canada in International Law Issues, 34 Can. Y.B. INT'L LAW 89, 92 (1996) (assessing international law issues in Canadian courts).

(60.) Mestral & Fox, supra note 14, at 581-82 (providing argument for adoption or dualist approach). The article considers the United States to have a hybrid approach to the use of international law. Id. at 583. That system requires the U.S. to have positive implementation of foreign authority prior to having full force in the U.S. legal system. Id. The article cites the Netherlands as an example of a monist country in which international law is assumed to have the force of domestic law. Id. at 582-83.

(61.) Id. at 583 (describing customary international law in Canada). The article cites R. v. Hape as the most recent reaffirmation of the proposition that customary international law has the force of law in Canada. Id.

(62.) [2007] 2 S.C.R. 292 (Can.).

(63.) Id. [paragraph][paragraph] 36-39 (noting long line of cases in which Canada adhered to adoption policy of international law). The case notes that a legislature may contradict international law, but it must expressly do so in order for the legislation to be effective. Id. [paragraph] 39.

(64.) Id. [paragraph][paragraph] 36-37 (detailing how courts should handle international law). If the legislature does not expressly prohibit the use of foreign authority, "the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law". Id. [paragraph] 39.

(65.) Id. [paragraph] 53 (describing international law as an interpretive principle of domestic law).

(66.) See Kirby, supra note 1, at 28 (noting Australia's journey towards incorporating international law is moving slowly). Justice Kirby compares the degree to which the United States Supreme Court and the High Court of Australia look to international authority. Id.

(67.) Id. at 19-22 (describing conflicting use of international law in Australian legal system). At common law and in relation to the interpretation of ambiguous legislation, the use of international law as a legal aid is uncontroversial. Id. at 19. There is, however, plenty of controversy surrounding constitutional interpretation. Id. at 22.

(68.) Id. at 19 (noting acceptance of principle).

(69.) Id. at 21-22 (describing the lack of uniformity in using international law for constitutional interpretation).

(70.) Id. at 28 (noting the similarities in the international law debate found in Australia and the United States). Justice Kirby invites those who are tired of the debate regarding the role of international law in the United States to "plunge into the Australian discourse." Id. ; see also Michael Kirby, Citation of Foreign Decisions in Constitutional Adjudication: The Relevance of the Democratic Deficit, 43 Suffolk U. L. Rev. 1, 121-26 (2010) (tracing recent international law trends in Australia).

(71.) See Kirby, supra note 70, at 121-26.

(72.) (2004) 219 CLR 562.

(73.) Id. (responding to majority opinion that condemned use of international law). Justice Kirby responded to Justice McHugh's thoughts on international law by declaring that Australian courts must, as closely as possible, interpret the constitution to be in harmony with the principles of international law. Id. at 624. Justice Kirby noted that if a court like the United States Supreme Court accepts international human rights law as persuasive authority, the High Court of Australia must do so as well. Id. at 628.

(74.) See id.; see also Kirby, supra note 1, at 22 (providing Kirby's quotation suggesting constitutional interpretation aligns with international human rights norms when ambiguous).

(75.) See Kirby, supra note 1, at 22 (discussing High Court of Australia's resistance to accept international law when interpreting constitutional ambiguities).

(76.) See Brief for Amnesty International et al., as Amici Curiae in Support of Petitioners, Graham, supra note 2, at *4-9 (detailing history of international law use in United States).

(77.) Id. (explaining how international law has been part of American society since Declaration of Independence).

(78.) Id. at *5; see generally Harry A. Blackmun, The Supreme Court and the Law of Nations, 104 Yale L.J. 39 (1994).

(79.) 356 U.S. 86 (1958).

(80.) Id. at 101 (holding punishment of denationalization due to military desertion to be unconstitutional). The Court traces the meaning of cruel and unusual punishment back to the Magna Carta. Id. at 100.

(81.) See, e.g., Roper, 543 U.S. at 576 (citing Trop v. Dulles, 356 U.S. 86 (1958), as starting point for American international law jurisprudence).

(82.) Trop, 356 U.S. at 102 (utilizing international consensus to enhance argument).

(83.) See, e.g., supra note 12 and accompanying text (noting landmark international law cases).

(84.) 433 U.S. 584 (1977).

(85.) Id. at 597 (applying international law as persuasive authority). The Court noted that international opinion regarding the punishment in question was persuasive and that it was "not irrelevant here that out of 60 major nations in the world ... only three retained the death penalty for rape where death did not ensue." Id. at 596 n.10.

(86.) 458 U.S. 782 (1982).

(87.) Id. at 788, 796 n.22 (reversing lower court decision).

(88.) 487 U.S. 815 (1988).

(89.) Id. at 838 (vacating judgment of lower court).

(90.) Id. at 830.

(91.) Grutter v. Bollinger, 539 U.S. 306, 344 (2003) (Ginsburg, J., concurring) (citing provisions in International Convention on the Elimination of All Forms of Racial Discrimination).

(92.) HUMAN RIGHTS IN STATE COURTS: AN OVERVIEW AND RECOMMENDATIONS FOR LEGAL ADVOCACY, THE OPPORTUNITY AGENDA, http://opportunityagenda.org/files/field_file/State%20Courts%20and%20Human% 20Rights%20%282008%20Edition%29_0_0.pdf (last visited Oct. 26, 2010).

(93.) In re Marriage Cases, 183 P.3d 384, 426 n.41 (Cal. 2008) (noting the Universal Declaration of Human Rights recognizes right to marry and have family as a basic human right).

(94.) Graham, 982 So. 2d at 50 (expressing weight of international norms on JWOP per se invalidity).

(95.) People v. Simms, 736 N.E.2d 1092, 1143 (Ill. 2000) (Harrison, C.J., dissenting) (citing European Convention and British Commonwealth decisions); Grimes v. Kennedy Krieger Inst., Inc., 782 A.2d 807, 858 (Md. 2001) (relying on Nuremberg Code in informed consent decision); Snetsinger v. Montana Univ., 104 P.3d 445, 458-59 (Mont. 2004) (Nelson, J., concurring) (applying international law when extending health coverage to same-sex partners). The foreign authority indicated that placing an inmate on death row for 15 years without a clear end was cruel and unusual. Id.

(96.) See supra Parts II--III (detailing past use of international law in domestic human rights cases).

(97.) See supra Part II.B (describing testimony of Justice Sotomayor regarding use of international law). Justice Sotomayor testified clearly that foreign authority is not binding on domestic legal decisions. See Sotomayor confirmation hearing, supra note 11, at 2 (providing testimony on use of international law for non-binding clarification only). Her belief that international law can be used to inform judges and enhance their overall basis is in line with this note's argument as to how and why foreign law may be included within domestic decision-making. Id. at 1-4.

(98.) See supra note 2 and accompanying text (arguing reasons for inclusion of international human rights law). In its amicus brief to the Supreme Court for both the Graham and Sullivan cases, Amnesty International detailed why the Court should consider foreign authority generally, and also why it applies to its decision regarding JWOP. Id.

(99.) Id. (detailing rules, use and effect of amicus brief process).

(100.) See supra Parts II.C.1-3 (describing use of national human rights consensus argument in conjunction with international law); see also Graham, 130 S.Ct. at 2023 (stating Eighth Amendment analysis begins with national consensus).

(101.) See supra Part III.A (tracing historical use of international human rights law in domestic decisions); see infra Part V and accompanying text (arguing appropriateness of international human rights law in domestic decisions).

(102.) See supra Part II.A (detailing international human rights law argument in two current Supreme Court cases); see supra Part II.C (describing past human rights cases employing international law).

(103.) See supra note 2 and accompanying text (outlining human rights role in U.S. foreign policy). The United States Department of State claims: "the existence of human rights helps secure the peace, deter aggression, promote the rule of law, combat crime and corruption, strengthen democracies, and prevent humanitarian crises." U.S. HUMAN RIGHTS POLICY, supra note 2.

(104.) See supra note 2 and accompanying text (noting relationship between Bill of Rights and international human rights).

(105.) See supra notes 15-23 and accompanying text (arguing need to incorporate international human rights law in Graham and Sullivan); see also supra notes 40-49 (tracing effect of international law on recent human rights cases); see supra notes 71-79 (describing evolving standard of decency argument as related to international law).

(106.) See supra notes 35-41 and accompanying text (using Roper as model for international law incorporation).

(107.) See supra note 2 and accompanying text (describing U.S. foreign policy as it relates to human rights).

(108.) See Brief for Amnesty International et al., as Amici Curiae in Support of Petitioners, Graham, supra note 2, at *4-6 (discussing international human rights attitudes and treatment particularly amenable to interpretation under U.S. Constitution's law of nations language); see also supra note 2 and accompanying text (acknowledging relationship between foreign and domestic human rights law).

(109.) U.S. HUMAN RIGHTS POLICY, supra note 2 (outlining Department of State policy in regards to international human rights).

(110.) Id. (arguing that Department of State policy encourages judges to consider international law); see supra note 2 and accompanying text (discussing increased volume of amicus brief filings seeking application of international human rights standards).

(111.) See supra note 9 and accompanying text (highlighting relationship between human rights and international law).

(112.) See supra note 2 and accompanying text (describing how U.S. foreign policy shapes international human rights debate).

(113.) See supra Part II.D (highlighting incorporation of international law debate in Canada and Australia). An examination of the effect of international law on domestic legal decisions in Canada and Australia underscores the role of the U.S. as a human rights leader. Id.

(114.) See supra Part II.A (articulating applicability of international law in Graham and Sullivan); See supra Part II.C (examining use of international law in domestic human rights cases); supra Part III.A (detailing history and effects of international human rights law within domestic U.S. legal decisions).

(115.) See supra Part II (discussing incorporation of international human rights norms by U.S., Canada and Australia).

(116.) See supra Part II.A (addressing Eighth Amendment arguments in Graham and Sullivan); supra Parts II.C.1-2 (discussing Eighth Amendment arguments in Roper and Atkins).

(117.) See supra notes 13-23 and accompanying text (relying upon argument that international law underscores unusual nature of punishment); supra notes 35-41 and accompanying text (introducing international law component of unusual argument).

(118.) See supra note 15 and accompanying text (noting infrequent does not mean unusual during Graham and Sullivan oral arguments).

(119.) See supra Part II.A (employing international law to enhance unusual punishment argument); supra Parts II.C.1-2 (explaining past use of international law as part of unusual punishment argument).

(120.) See supra Parts II-III (discussing attitudes surrounding international human rights norms and effects from historic implementation).

(121.) See Garcia, supra note 2 (describing average amount of amicus brief use).

(122.) See supra note 2 and accompanying text (commenting on purpose of amicus brief process). The principles that justify the allowance of amicus brief mirror those that support the incorporation of international law within domestic legal decision-making. Id.

(123.) See Garcia, supra note 2, at 321 (noting Supreme Court rules regarding amicus briefs)

(124.) See supra Part II.B (addressing Justice Sotomayor's preferred use of international law). Throughout her testimony, Justice Sotomayor described the appropriateness of international law in terms similar to those used to justify the amicus brief process. Sotomayor confirmation hearing, supra note 11, at 1, 3-4.

(125.) See Garcia, supra note 2, at 316 (stating role of amicus briefs in judicial decision-making).

(126.) See supra note 2 and accompanying text (addressing use of amicus briefs in Graham and Sullivan). The amicus brief submitted by Amnesty International is the most effective in terms of arguing for the use of international law in domestic decision-making. Brief for Amnesty International et al., as Amici Curiae in Support of Petitioners, Graham, supra note 2.

(127.) See supra note 2 and accompanying text (noting role of amicus brief).

(128.) See supra Part II.C (detailing use of international law in Roper, Atkins and Lawrence). The Court's use of international law in these three cases falls in line with the notion that the foreign authority was employed as if it were an amicus brief. See Roper, 543 U.S. at 575-78; Atkins, 536 U.S. at 318 n. 21; Lawrence, 539 U.S. at 576-77.

(129.) See supra Part II (describing proper use of international law).

(130.) See supra note 10 and accompanying text (noting Justice Scalia's criticism of use of international law); see supra note 33 and accompanying text (maintaining incorporation of international law diminishes American sovereignty); see supra Part II.C. 1 (highlighting Justice Scalia's rebuke of international law in Roper).

(131.) See supra note 2 and accompanying text (indicating frequency of use of amicus briefs); see also Graham, 130 S.Ct. at 2034 (analyzing amici submitted on behalf of each party as related to international law discussion).

(132.) See supra note 2 (comparing amicus brief use to international law use).

(133.) See id. (indicating amicus brief acceptable so long as void of international law arguments).

(134.) See Sup. Ct. R. 37(1) (Supreme Court amicus rule).

(135.) See supra Parts II.A-C (commenting on appropriate use of international law in general).

(136.) See supra note 2 (discussing statistical prevalence of amicus briefs).

(137.) Id.

(138.) Id.

(139.) See supra Part II (offering justification for use of international law in domestic legal decisions).

(140.) See supra notes 13-23 and accompanying text (noting technique used by Petitioner in Graham and Sullivan to advance international law argument); supra notes 32-49 and accompanying text (describing past use of international law argument). In each case referenced above, those relying on international law used an approach similar to the fifty-first state proposal. See supra notes 32-49 and accompanying text.

(141.) See supra Part II.C (describing Court's use of domestic popular and legal trends); see also supra Parts III.A-B (noting historical relationship between international law and state legal trends).

(142.) See supra notes 15-23 and accompanying text (listing national consensus argument in Graham and Sullivan); supra notes 43-51 (highlighting national consensus discussion in Roper).

(143.) See supra Parts LLC-HI

(144.) See supra notes 35-49 and accompanying text (demonstrating national consensus technique in Roper, Atkins and Lawrence).

(145.) See supra notes 43-61 and accompanying text (detailing Court's approach to foreign authority in Roper, Atkins and Lawrence); see also supra notes 82-97 and accompanying text (providing historical perspective on national consensus and international law relationship).

(146.) See supra note 41 and accompanying text (following Court's approach to international law as a confirming agent).

(147.) See Scalia & Breyer, Constitutional Relevance of Foreign Court Decisions, supra note 10 (noting Justice Scalia's criticism of use of international law); Larsen, supra note 41, at 786-87 (maintaining incorporation of international law diminishes American sovereignty); supra Part II.C. 1 (highlighting Justice Scalia's rebuke of international law in Roper).

(148.) See supra Parts II.A-C.

(149.) See supra Parts II-III.

(150.) See Larsen, supra note 41, at 784-87 (noting popular sovereignty aspect of international law debate).

(151.) See Larsen, supra note 41, at 787-90 (opining that application of international law detracts from power of American people).

(152.) See supra notes 13-23 (asserting proper international law arguments used in Graham and Sullivan).

(153.) See supra note 2 and accompanying text (rebutting argument that international law is threat to popular sovereignty).

(154.) See supra Parts II-III.

(155.) Id.

(156.) See supra notes 15-30 and accompanying text (detailing Petitioner's use of international law in Graham and Sullivan). The fifty-first state suggestion for how to employ the use of international is in line with and based upon Petitioner's arguments in Graham and Sullivan. See supra note 34 (describing Justice Sotomayor's thoughts on international law incorporation).

(157.) See supra Part II.C. 1 (describing Justice Scalia's disdain for use of international authority); see also supra note 4 (detailing Justice Scalia's dissent in Roper).

(158.) See supra Part III.

(159.) See supra Part II.C (noting treatment of various authority in Supreme Court decisions); supra Part II.D (describing use of international authority in Canada and Australia); supra part III.A (providing historical perspective on use of authority by Supreme Court).

(160.) See Scalia and Breyer, Constitutional Relevance of Foreign Court Decisions, supra note 10 (indicating Justice Breyer's approval of use of international law). When confronted with the issue of 'picking and choosing" international authority that suits his argument, Justice Breyer indicated his belief that judges will do their duty and explore all relevant information. Id.

(161.) Id. (considering justification of use of international law).

(162.) See Bobbitt, supra note 2, at 13 (describing modalities of constitutional interpretation).

(163.) Id. at 12-22 (noting use of prudential argument as part of constitutional interpretation).

(164.) See supra Part II.C (outlining Supreme Court's application of prudential concerns when applying international law); supra Part III.A (tracing history of Supreme Court decisions involving prudential concerns and international law).

(165.) See U.S. HUMAN RIGHTS POLICY, supra note 2 (suggesting global reach of U.S. human rights decisions); see also supra text accompanying note 2.

(166.) See supra notes 22-30 (detailing international law arguments in Graham and Sullivan). The international law arguments made by Petitioner in both Graham and Sullivan spoke to prudential concerns regarding JWOP sentences. See supra note 16.

(167.) See supra notes 44-46 and accompanying text (noting appropriate use of international law within Roper decision).

(168.) See supra Part II.

(169.) See supra Parts II.D-III.

(170.) See Bobbitt, supra note 2, at 16-20 (noting connection between international law incorporation and prudential values).

(171.) See supra Parts II-III.

(172.) See supra Part IV (arguing international law as appropriate persuasive authority for constitutional decision-making).

(173.) See supra Part IV.A.1 (describing U.S. policy to be international human rights leader).

(174.) See supra Part IV.A.2 (noting Eighth Amendment decisions as particularly appropriate for incorporation of international legal principles and norms).

(175.) See supra Part IV.B (analogizing consideration of international law as persuasive authority to use of amicus briefs in general).

(176.) See supra Part IV (arguing globalization as a foundational reason for foreign law citation).

(177.) See supra Part IV.C.1 (noting national legal consensus trumps international law considerations).

(178.) See supra Part IV (reiterating international law role as non-binding authority).

(179.) See supra Part IV.B (describing relationship between international law and use of the amicus brief).
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Author:Chandler, Jason
Publication:Suffolk Transnational Law Review
Date:Jan 1, 2011
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