Should the U.S. Supreme Court Cite Foreign Precedents?

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Mr. Flynn is a retired patent attorney.

The use of foreign law in U.S. courts continues to be in the news. Justice Antonin Scalia has been a forthright spokesman against outsourcing American law to foreign authorities. In contrast, other justices have expressed an openness to foreign sources to help decide issues arising out of modern developments not foreseen by the Founders. Their point of view has ample precedent in nineteenth century Supreme Court rulings on patents and women’s rights— precedents notable more for quantity than quality.

In 1822 Justice Joseph Story put the Court on the slippery slope of reliance on English law in patent cases with his opinion for a bare majority of the justices in the case of Evans v. Eaton. The dissenting justices protested in vain against relying on “decisions in England, of a date long subsequent to the [American] revolution, and many of them posterior to the passage of patent laws in this country, and which could not therefore have been in the contemplation of Congress at that time.”

In the Pennock case (1829) Justice Story attempted to answer this by invoking Sir Edward Coke as an authority on the English Statute of Monopolies (1624). This was the only English statute dealing with patents, which it did in a few words making patents for inventions an allowable exception to the general rule against monopolies. Coke’s distinctive contribution to English patent law (long before the statute) was his opinion that the common law did not countenance a patent on an improvement or addition to an existing product. This opinion had been thoroughly repudiated by England’s Court of King’s Bench many years before Story’s reliance on Coke. It came in patent infringement cases in 1795 and 1799 on James Watt’s steam engine.

Story’s use of English law in American patent cases first appeared just three years after English troops had burned down the Supreme Court’s chamber in the Capitol, along with every government office in Washington except the Patent Office. Sitting as a trial judge in Lowell v. Lewis (1817), Story based his decision on an English case, MacFarlane v. Price, in these words: “I accede at once to the authority, which has been cited.” Only after making this accession did he go to the American patent statute (1793) which completely disposed of the issue in dispute. Again, in his Note on the Patent Laws (1818) he exalted England’s case law under its Statute of Monopolies and its common law.

Thomas Jefferson, on the other hand, was outraged by the federal courts’ reliance on England’s common law. He considered it a legislative matter which required congressional action. He conceded Virginia’s legislative adoption of England’s common law. However, this was not much of a concession because of his conviction that the development of the common law ended with the Magna Charta, leaving only a severely truncated version of the common law in effect in his home state, in his opinion.

As for Lord Coke, this is what Jefferson, as a law student, wrote on Christmas day, 1762: “I do wish the Devil had old Cooke, for I am sure I never was so tired of an old dull scoundrel in my life.” Justice Story evidently did not share that view, and his influence continued to be felt long after he left the Court. As the nineteenth century went on, lawyers arguing patent cases in the Supreme Court had to be attentive to its continuing fixation on what England’s courts were saying, even after the Court in the Hollister and Thompson cases (1885) invoked the U.S. Constitution as setting a standard of “invention” which each patented must satisfy. Ten years after this, the Court in Potts v. Creager again paid its respects to the courts of the mother country for guidance in patent cases.

It took the Supreme Court most of a century to wean itself from the mother’s milk of English patent law, which in reality was judge-made law because of the English statute had so little to say on patents for inventions. The English statute itself was a dead letter for a century and a half from its enactment until shortly before the American Revolution, so English patent jurisprudence had only a short head start on American. But it proved decisive, given the Supreme Court’s reluctance to fashion a distinctively American patent jurisprudence based on the American patents statutes to match the buoyant optimism of such typically American enthusiasts as Abraham Lincoln and Mark Twain. Lincoln spoke of patent laws as one of mankind’s greatest discoveries—right up there with writing and printing and the discovery of America. As for Twain, in A Connecticut Yankee in King Arthur’s Court, he wrote, “ a country without a patent office and good patent laws was just a crab, and couldn’t travel any way but sideways or backways…the very first thing you want in a new country, is a patent office.”

It was in the area of women’s rights that the Supreme Court stumbled badly by relying on English law instead of American sources. One of developments presumably not specifically foreseen by the Founders and the authors of the Fourteenth Amendment was a woman’s aspiration to practice law. The Supreme Court dealt with this issue in its December 1872 term when it upheld the Illinois Supreme Court’s ruling that Myra Bradwell, as a married woman, was not allowed to practice law in the state Illinois because this was unheard of under England’s common law, which Illinois had adopted as the basis of its own law. Arguments on Mrs. Bradwell’s behalf invoking the Fourteenth Amendment and Article IV, Section 2, of the Constitution were of no avail.

In the Bradwell case the courts allowed foreign law—specifically, England’s common law—to nullify rights and liberties meant to be protected by what some today call old, narrow documents. If instead the Court in Bradwell had taken Justice Scalia’s approach and relied on the transparently clear intent of the Fourteenth Amendment it would have affirmed Mrs. Bradwell’s right to practice law, as she was qualified to do.

The nineteenth century disproves the notion that our Constitution necessarily becomes more dynamic and adaptable to modern changes by consulting foreign authorities instead of sticking to the original intent of the Founders and authors of the constitutional amendments. They may not have foreseen Mrs. Bradwell’s intention to practice law—and Justice Ruth Bader Ginsburg’s, as well—but the documents themselves are broad charter of personal liberty which needs no foreign authority to enlarge—or, more likely, to restrict.

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andy mahan - 9/18/2006

Probably state law but of course that depends on the case that you are talking about. Which one?

andy mahan - 9/18/2006

Puhleez.... The Supreme Court would not need a bunch of reporters to interpret state law, (ask Ginsberg). Many state charters had been in effect for over 100 years by then and their laws were settled. Anyway, who cares what the amount of precedent was? The Court would not be concerned with facts, only law and the constitutionality of the ruling of the lower court. Find me ONE opinion that cites common law as anything more than dicta.

Yeah, you might try Wikipidia that's a good primary source.

Petition of Right forerunner of US Bill of Rights? Hardly! Preceeding does not constitute forerunning. Show me where Cokes document influenced the Bill of Rights.

andy mahan - 9/18/2006

Nice try Paul. I won't even read the cases cause I know that there is no reference to English common law as precedent in either case. I find it almost silly that you are trying to argue that English common law is included in precedent. It isn't. The American Constitution is from what our rights and liberties spring, not any foreign document. The reference in a case to a similar right existing under English common law at the time of adoption of the 7th doesn't make English common law the genesis of the precedential line of cases. You must understand the difference between dicta and the line of precedent supporting the holding. No where in the line of cases leading to, including, and proceeding, does English common law support any holding. Okay?

andy mahan - 9/18/2006

Facts? hahahahahaha, Neither of those cases use English common law as precedent....if so cite the passage. The FACT is as I stated YOU'VE failed to impeach the truth. Your argument amounts to be only your wish that English common law was used a precedent. It hasn't been, as it can't because the act would be UNCONSTITUTIONAL. Now as to whether or not foreign cases should be considered in Supreme Court rulings, my answer remains, HELL NO, they have no precedent in OUR legal system.

andy mahan - 9/18/2006

WRONG. There is a SEPARATE AND DISTINCT difference between "common law" as referred to in the 7th and "English common law" that you claim was the law of the land in America early on. You couldn't be wronger. How about this, since you claim they were one in the same, cite a case in which "English common law" is cited in the holding.

andy mahan - 9/18/2006

It's unconstitutional. For orignialists the constitution is sufficient. For Constitutionalists doesn't OUR constitution live and breath enough that they can impute their intensions from it?

andy mahan - 9/18/2006

Where in the constitution does it direct reference to common law? How about anything other than US law? That caprecious crap was what we were escaping. What is the detail of Federal Codes as relates to nanotechnology intellectual property today?
Apparently you are one of those "living, breathing" types. Hey why is a constitution even needed if "the times" directs law?

Oscar Chamberlain - 4/16/2006


Are you Thomas Pyncheon in disguise? You really are beginning to sound like one of his characters.

Paul Noonan - 4/14/2006

... don't confuse me with the facts. I see no point in continuing this discussion.

John H. Lederer - 4/13/2006

Just to perhaps make he discussion a bit more on track.

-- there are a few special cases where foreign law is clearly applicable, for instance in determining whether a company is immune from suit because owned by a sovereign, interpreting a treaty, or dterming what effect to give to a foreign judgment ina US court.

--There are a couple of other areas where, by tradition and by practicality, a corpus of international/foreign law is applied. Admiralty law is one such area-- we freely borrow from foreign (princpally British) cases in determining for instance the duty of a master to his passengers. When I clerked for a federal District Judge we unexceptionably quoted from the Law Of Rhodes (an admiralty code created by Richard the Lion Hearted during the crusades) and the Code of Justinian (Roman Emperor) in a case.

--there is a body of federal common law (common law is the judge made law applied where there is no statute). However, it should only exist where there is no stautory law. originally our common law was entirely English, but has been gradually supplanted by the built up body of american case law. Resort is still occasionally had to British law, particularly for esoteric subjects on which there is little or no post-Revolutionary case law.

-- Finally there is the controversial stuff. This is generally the use of foreign law to interpret statutory law or the Constituion.

Paul Noonan - 4/13/2006

I mean "principle", not "principal", of course...

Paul Noonan - 4/13/2006

UNITED STATES v. WONSON, 28 F.Cas 745 (No.16750)(CC Mass 1812)

This is a circuit court case (the circuit courts were the predecessors of today's Federal Courts of Appeal) but it was written by Supreme Court Associate Justice Joseph Story (SC justices often sat in on inferior courts in those days).

The principal has often been upheld by the Supreme Court, for example:


Case closed!

Doug Corey - 4/13/2006

Since the US Constitution is based upon the foreign Roman Republic [Senate for example] which ended when J Caesar seized power and since this is a nation for foreign immigrants or their descendants - why should the US Supreme Court not consider foreign laws.

More important is to consider the Declaration of Independence, which emphasizes that justice is more important than law. The preamble includes the word justice but not law.

Even article I of The ARTICLES of CONFEDERATION and PERPETUAL UNION appears to remain in effect - The Stile of this Confederacy shall be "The United States of America". Both Taylor and Lincoln include variants of the word perpetual in their inaugurals. If specific portions of this document were not superseded by the US Constitution, should this document be honored as the two other documents mentioned in this post?

Paul Noonan - 4/12/2006

For a brief discussion of Coke's influence on the Founders go to:


You want primary sources regarding the interface of the common law and the Constitution. Well, try the 7th amendment to the Constitution which provides that in civil suits " no fact tired by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law." In 1789 when this was written, and in 1791 when it was ratified, there was no American common law separate and distinct from English common law. And almost all legal actions in federal courts were civil suits in the early years of the Republic (only a few federal crimes like counterfiting etc. then).

Paul Noonan - 4/11/2006

Actually the reporting of state court opinions began in the US only a few years before the Supreme Court met for the first time in 1790. In 1790 the total of published opinions could have probably have fit on one bookshelf. And the state court judges at the time cited English cases to justify their decisions!

Also, Flynn wrote:

"As for Lord Coke, this is what Jefferson, as a law student, wrote on Christmas day, 1762: “I do wish the Devil had old Cooke, for I am sure I never was so tired of an old dull scoundrel in my life.”

Jefferson was 19 at the time and he is undoubtedly referring to the fact that Coke is an excruciatingly difficult writer to read and understand. I very much doubt that Jefferson (at least the adult Jefferson) had any moral or political objection to Coke, who was as much of a champion of liberty as anyone in the English speaking world who came before him.

The following are from the Wikipedia article on Coke:

"One of Coke's greatest contributions to the law was to interpret Magna Carta to apply not only to the protection of nobles but to all subjects of the crown equally, which effectively established the law as a guarantor of rights among all subjects, even against Parliament and the King. He famously asserted: "Magna Carta is such a fellow, that he will have no sovereign."

"Under Coke's leadership, in 1628 the House of Commons forced Charles I of England to accept Coke's Petition of Right by withholding the revenues the king wanted until he capitulated. The Petition of Right was the forerunner of the English Bill of Rights and the U.S. Bill of Rights."

Oscar Chamberlain - 4/11/2006


Let me ask you this. When the Supreme court ruled on aspects of contract law in the late 18th and early 19th century, what from your perspective could it have used as a basis for judgement--that actually existed at the time?

Oscar Chamberlain - 4/10/2006

You can make an argument that, at least early on, the constitution required reference to British common law because, in the absence of detailed federal codes of law, the federal courts had to rely on precedents that dated back to England.

So the question is, in fact, can the federal court utilize precedents that originate outside of England and its traditions.

By the way, the Constitutional alone is almost never sufficient. It takes on meaning only in the context of its times.

Kevin R. C. Gutzman - 4/10/2006

... someone with a J.D. could think that the "transparently clear intent" of the Fourteenth Amendment had anything to do with women practicing law.