ABA believes international precedent resolution threatens interbranch relations
 In a letter (PDF) to Rep. James Sensenbrenner, chair of the House of Representatives Committee on the Judiciary, the ABA expressed its concern about a resolution introduced by Rep. Tom Feeney, H.Res.97, contending that it threatens to intrude on the independence of the judicial branch and unnecessarily strains interbranch relations.
As Robert Evans, director of the governmental affairs office, wrote to Sensenbrenner, “The resolution assumes that the federal judiciary already has relied inappropriately on foreign judgments, specifically citing Lawrence v. Texas as a recent example.” The letter notes that this misconstrues Lawrence, which “used foreign law not as precedent but rather as a tool to contrast and analyze our own jurisprudence.”
“The central issue addressed in this resolution — the appropriate use of foreign sources by our federal courts — is an evolving issue, and it has implications for many other issues such as the pitfalls and advantages of consulting other legal traditions, whether our courts should engage in comparative constitutional analysis, the effect of globalization on the types of cases that our courts are asked to settle, and the impact on foreign policy of the judgments of our courts,” says the letter. “[O]ur judges are fully engaged in the discussion and fully aware of what is at stake. In time, as with so many important issues of the day, after ample discussion and debate, a consensus over the relevant issues and guiding principles may emerge.”
The ABA recognizes that Congress has the authority to adopt a non-binding resolution directed to another branch of government, but urges that “respect for separation of powers suggests that Congress should refrain from telling the federal courts how they should perform their core adjudicatory functions.”
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