Letters to the Editor in response to Your ABA for October 2005

Our bar association

To the Editor: 

Just read my Your ABA and had to write to commend our leadership and the House for the outstanding efforts in addressing national legal issues of importance to our system of laws: habeas corpus, CLE for underserved attorneys, screening for domestic violence, and Social Security disability regulations.  Thank you.  I feel much better about paying my dues. 

Arline Jolles Lotman
Philadelphia, PA
former member of the House of Delegates

International precedent

To the Editor:

The ABA letter to Representative Sensebrenner starts out making valid points, citing legal precedent and making arguments based on legal precedent.  This appropriate foundation masks the political agenda of the letter, which is clearly exposed in the third penultimate paragraph of page 2, where the ABA advances unsupported conclusions that “the appropriate use of foreign sources by our federal courts — is an evolving issue,” and suggesting that “comparative constitutional analysis” is a valid undertaking. 

The lack of reasoning and legal precedent in support of these conclusions is striking and even breathtaking — the reasoning so painstakingly expressed up to this point is abandoned and is completely disconnected from the politicized conclusions offered in this penultimate paragraph.   My guess is that a sizeable plurality and perhaps a majority of my fellow ABA members agree with my objections to this abrupt turn in tone, reasoning and principle in this letter to advocate politicized conclusions.  The point is that the ABA must guess also — you feel quite secure in just plowing ahead with this politicized and unprincipled advocacy, without having any idea of support for these conclusions beyond the insular inner circle.

ABA critiques should be more firmly grounded on either the sensibilities of its members or legal principles before the ABA chooses to speak for all of us.  

R. Bradley Lambert
R. Bradley Lambert PLC
Bloomfield Hills , MI  

To the Editor:

The ABA might also wish to consider the impact that legislated repudiation of foreign precedents might have on forum disputes and recognition of U.S. judgments in foreign courts.  Currently in Canada assumption of jurisdiction by a U.S. court with a real and substantial connection to the subject matter of the dispute is given a great deal of deference based on the principle of comity and the importance of international commerce.  Similarly application of principles of res judicata and issue estoppel are impacted by cross border respect and comity.   As an example, I am currently considering whether a factual determination by the 9th Circuit Court of Appeals in California should be binding on the parties in Ontario and whether or not it should influence the determination of this court as to whether Ontario or France is the appropriate forum for a dispute.

Here, as in most common law jurisdictions, foreign precedents including decisions of the courts in other provinces, the United States and England are persuasive but not binding and may be taken into account if there is no local precedent or if the court is considering whether or not an evolution of the common law adopted in another jurisdiction should be followed here.  While it is seldom necessary to look to U.S. precedents on most issues, it is instructive to examine how U.S. courts have grappled with certain issues.

Just as it is useful, all other things being equal, for there to be harmony and consistency between the laws of the states or between Canadian provinces, so too it is useful, all other things being equal, for there to be harmony and consistency in the common law.

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