Rehnquist, Scalia and Thomas Cited Foreign Law

Here’s an interesting discovery by Rick Pildes, law professor at New York University, posted on Balkinization.

Turns out Justice O’Connor wrote an opinion in 1998, joined by her conservative colleagues William Rehnquist, Antonin Scalia and Clarence Thomas, that cited as persuasive an aspect of foreign law, notwithstanding Republicans’ strong objections to the idea that foreign law can ever be relevant to interpreting the U.S. Constitution.

Here’s the passage, from Eastern Enterprises v. Apfel, 524 U.S. 498 (1998):

“Retroactivity is generally disfavored in the law, in accordance with “fundamental notions of justice” that have been recognized throughout history.” . . . . A similar principle abounds in the laws of other nations. See, e.g., Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, 66 D.L.R. 3d 449, 462 (Can. 1975) (discussing rule that statutes should not be construed in a manner that would impair existing property rights); The French Civil Code, Preliminary Title, art. 2, p. 2 (“Legislation only provides for the future; it has no retroactive effect”) (J. Crabb trans., rev. ed. 1995); Aarnio, Statutory Interpretation in Finland 151, in Interpreting Statutes: A Comparative Study (D. MacCormick & R. Summers eds. 1991) (discussing prohibition against retroactive legislation). “Retroactive legislation,” we have explained, “presents problems of unfairness that are more serious than those posed by prospective legislation, be-cause it can deprive citizens of legitimate expectations and upset settled transactions.” General Motors Corp. v. Romein, 503 U.S. 181, 191, 117 L. Ed. 2d 328, 112 S. Ct. 1105 (1992).

Somehow I don’t think the senators grilling Sotomayor yesterday on her previous statements that foreign law may sometimes be worth considering have read that case.

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