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Hans Bader discusses dangers of courts relying on "international norms"

On the Competitive Enterprise Institute's blog OpenMarket.org, senior attorney and counsel for special projects Hans Bader asks, Will "International" Norms Override Civil Liberties and Protections Against Violent Crime?

Hans makes a compelling case (extended article) that the Supreme Court sets a dangerous precedent when it relies on "international opinion" in deciding a case. The risk according to Hans, is that these "international norms" are usually hostile to our basic civil liberties and are "vague and manipulable" and therefore, can be applied selectively to push a particular ideology/agenda.

Hans expands on this point,

Courts should not rely on "international opinion" to decide cases, since it is vague and manipulable. So-called international law is applied selectively by lawyers and judges, who cite real or imagined "international law" to push the ideological goals they support, while ignoring actual international court rulings they don't like, like foreign court rulings barring punitive damages or limiting damages under the Warsaw Convention (as in Olympic Airways v. Husain).

Left-wing lawyers take vague international treaties and interpret them as mandating liberals' ideological wishlists, like restricting criticism of Islam and minority religions as "hate speech," banning Mother's Day as sexist, and mandating quota-based affirmative action. For example, the CEDAW equal-rights treaty has been construed by an international committee as requiring "redistribution of wealth," "affirmative action," "gender studies" classes, government-sponsored "access to rapid and easy abortion," and "the application of quotas and numerical goals." Never mind that most countries don't even have affirmative action.

But left-wing lawyers ignore foreign law and world opinion when it calls into question liberal policies in the United States. One classic example is the horror that most countries' courts have for the American practice of letting virtually unguided juries award punitive damages. In most of the world, punitive damages are forbidden. But you will never see a liberal Supreme Court justice talk about "international law" or "international opinion" when it comes to punitive damages, which are sacrosanct in the eyes of some liberal judges.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.