C.J. Abrahamson Cites Foreign Law

As you may know, April 2009 will feature another election for the Wisconsin Supreme Court. Incumbent Chief Justice Shirley S. Abrahamson will face the voters in her bid for a fourth ten-year term on the state’s high court. As with Justice Butler last year, I will be using GOP3.com in the coming months as a platform to critique the Chief’s jurisprudence and to comment on the race.

Today marks the start of a conversation on this blog about the Chief’s judicial philosophy, especially as expressed in her past activities, writings, and opinions. Christmas is great for many reasons, but one of them is that it allows me the free time to blog more extensive, in-depth research. So here, without further ado, is a research memorandum on Chief Justice Abrahamson’s use of decisions by foreign courts in deciding Wisconsin cases.

Wisconsin Supreme Court Chief Justice Shirley Abrahamson has issued a bold call for greater use and citation of foreign law in Wisconsin court decisions. In her article All the World’s a Courtroom: Judging in the New Millennium (26 Hofstra Law Review 273 – 1997), she argues that American courts should begin citing court decisions from other countries:

“Why do the political borders continue to matter so much for the American legal system? Are we lawyers and judges suffering from legal xenophobia? …
“[W]hen courts from around the world have written well-reasoned and provocative opinions in support of a position at odds with our familiar American views, we would do well to read carefully and take notes. …
“Why shouldn’t our experiences as American comparatists embolden more American lawyers and judges to explore the law of non-American jurisdictions in the same spirit? Why shouldn’t we take advantage of the comparatist instincts learned in our law schools and practiced in our courts by venturing farther afield?
“[W]e can cross the divide separating us from other jurisdictions around the world. And if we do so with the modest intent to borrow ideas on classifying, discussing, and solving a particular problem, we should not be deterred by unfamiliarity with foreign legal systems. We may fail to understand a particular system of law or even misinterpret some foreign decisions. Nevertheless, we may also find unexpected answers or new challenges to domestic legal issues. … In fact, foreign opinions could function like superstar amicus briefs, offering otherwise unavailable viewpoints, delivered from unique perspectives, by some of the world’s leading legal minds. …
“I suggest that American courts, although they rightly view themselves as independent, can surely strengthen and better convey their message if they are willing to broaden their vision. Hence, we should not deride a party who cites Canadian law. We should be citing Canadian law ourselves, along with law from the rest of the world. …
“[T]he world is now our courtroom.”

Several years earlier, she had written, “We can learn from the legal systems of other countries. Judges around the world have come to know about and learn from our legal system and our case law. We must be less provincial and must learn about theirs. Cases arising in Europe, Africa and Asia offer important lessons for us.” The Consumer and the Courts, 74 Judicature 93, 95 (1991). The Chief Justice’s beliefs on this matter are more than mere rhetoric. Her desire to see foreign law cited in American cases has influenced her own work on the Court:

This is most pronounced in her opinion in the Court’s most important statutory interpretation case, where she authored what might be labeled “the Canadian concurrence.” Discussing her approach to statutory interpretation, C.J. Abrahamson says, “I agree with the approach the Canadian courts take.” She then cites two decisions from the court of appeal for Ontario and one case from the Supreme Court of Canada arguing for statutory interpretation based on “total context.” Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 70.

In a majority opinion, C.J. Abrahamson compares Wisconsin statutes to Canadian laws. Foley v. City of West Allis, 113 Wis.2d 475, 487 n.9 (1983). Criticizing textualism, C.J. Abrahamson quotes a justice of the Supreme Court of Israel arguing for greater use of extrinsic sources in judicial interpretation. Fox v. Catholic Knights Ins. Soc., 2003 WI 37, ¶ 43, n.13 (Abrahamson, C.J., concurring). Discussing durable powers of attorney, C.J. Abrahamson says that “this area of law may be one in which we can learn from the experiences of other countries, especially England, Australia, and New Zealand.” Russ ex rel. Schwartz v. Russ, 2007 WI 83, ¶ 56 (Abrahamson, C.J., concurring). Though in none of these cases was the foreign law the deciding factor, her other writings speak very highly of the use of foreign law in American courts.

In praise of Chief Justice Abrahamson’s “perspective,” the Chief Justice of the Supreme Court of California has written (Ronald M. George, A Dedication to Shirley Abrahamson, 67 Alb. L. Rev. 647, 649 (2004)):

On an even more global scale, Chief Justice Abrahamson has shown herself to be intellectually curious and open-minded about ways in which she can apply the laws, decisions, and nuances of other states and nations to her own judicial body of work. She embraces the refreshing notion that narrow and provincial interpretations of the law do not make for good jurisprudence. As a human being, she can be modest and unassuming; as a jurist, those qualities translate into her generous respect for the legal systems of other states and cultures. … Aware, as always, of the rapidly-evolving legal landscape throughout the world, Chief Justice Abrahamson firmly believes that as jurists we have no choice but to adopt a global perspective.

Though Chief Justice Abrahamson’s comments and opinions are troubling standing alone, they are much more so when considered as part of the broader movement in the law towards citation of foreign decisions. Her article is part of a larger effort by judicial liberals to justify the influence of foreign courts in American jurisprudence. This judicial philosophy has even reached the Supreme Court of the United States, where opinions have cited decisions from the European Court of Human Rights, Australia, Canada, New Zealand, and South Africa, among others. In a major address, left-leaning Dean Harold Koh of Yale Law School described the Court’s majority as “transnationalist.” Echoing Chief Justice Abrahamson, he said that “U.S. courts should not simply look to whether something furthers the U.S. system. Now we are asking the question whether the U.S. should look to the promotion of an international system.”

Not everyone agrees with Chief Justice Abrahamson and the judicial liberals. Many prominent American jurists and scholars believe that America is a unique nation, and that her courts should refuse the twin temptations of judicial activism and foreign citations. These analysts believe foreign law is a way for American judicial activists to impose other nations’ values on Americans. Wisconsin voters should keep C.J. Abrahamson’s record on this matter in their minds as they consider whether to support her in April.

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