why should court consider the foregin cases a precedent is so what authority does it have ?

Question

after indepences also for a long time. should foregin cases is to reffers as a substantive athourity.

Answer 1

Foreign court opinions are never precedent, in the sense that US courts are legally bound to accept their holdings as substantive law to be applied to similar cases in the future. However, to the extent that foreign courts consider similarly worded statutes and their applicability to similar situations as those that may face US Courts' they may consider the foreign court's reasoning persuasive.

Sometimes foreign court decisions are binding on parties in the US -- in that they are made so by legally enacted treaty.

Sometimes the holdings of foreign courts determine rights of Americans. For instance, divorces, if legally obtained in a foreign country, are recognized in the US. If a foreign divorce is challenged in a US Court, the US court may have to determine if the divorce was granted in accordance with the laws of the foreign jurisdiction, to determine if the divorce should be recognized in the US. In doing so the US court will refer to the decisions of the courts in that country.

Answer 2

During pre-Revolutionary America American courts used English cases as precedent. Following the establishment of the USA the court's continued to use English cases as precedent, but decided some items (particularly in the area of real estate) differently to jive with the American Bill of Rights.

American courts continue to follow that tradition, particularly in cases where no American case has asked a specific question of law that a foreign case has answered. Also, American courts will usually only look to foreign case law that is from courts in other "Common Law" countries such as England, Scotland, Australia, Canada, etc.

The term "foreign law" also means a case decided in a different jurisdiction. For example, a judge in NY would consider a decision reached by a judge in NJ to be "foreign precedent." Therefore, foreign does not just refer to being from another country. Also, judges can use foreign law to learn about the thinking used by another judge, but they are not bound to follow it unless they feel it best complies with the laws of their own cases.

Answer 3

Foreign cases may be persuasive -- sometimes very persuasive -- but they are almost never binding. The exception (when they are binding) is in cases of res judicata and issue preclusion: where a case or a matter has been decided between the parties in another court (or an arbitral forum), in the USA or abroad, and shouldn't be re-litigated.

A foreign judgment is also binding -- or should be binding -- if it declares what the law of that country is, and if the US court is applying such law. Here's a case where the US court decided for itself what the foreign law was, even though the foreign country (and its courts) said otherwise (the defendant got 8 years imprisonment, too): The McNab and Blandford case, http://www.law.com/jsp/article.jsp?id=1076428337070

Another Answer has claimed that having regard to foreign case law is "liberal". That's not only wrong, it's ignorant. The sainted Harvard Law professor and Supreme Court Justice Joseph Story cited foreign cases all the time, and if Scalia and Thomas don't agree, it doesn't improve their status as jurists. (Even they would cite foreign decisions in the situations I've cited above, however.)

It is true that a judge will mostly cite a foreign case for illustration, when it supports his or her point of view -- but that's true of any case cited as precedent or in support of obiter dictum.

A foreign case may be especially persuasive if it covers the same issues that are now before the US court. Or if it deals with a treaty signed with the foreign country and ratified by the Senate (most treaties today are in fact legislated as if the US were, like Britain, a "dualist" country rather than a "monist" one where a ratified treaty has the effect of law anyway). The judge will probably also look at the Congressional history of the ratification to make sure that the two sides meant the same thing when they negotiated the treaty.

Where international law is at stake, foreign judgments are as valid as anything else (i.e., the opinions of scholars) since international law depends on consensus.

Someone has said that pre-1776 English cases are irrelevant now in the USA. It is true that many states have by legislation repealed the "common law of England" on the basis that every issue has been addressed since 1776. But that reminds me of the movement in the 1920s to close the US Patent Office on the basis that everything has been invented. Old cases are explanatory of our history; nobody is claiming that they are the law. Here are some: http://www.geocities.com/englishreports/

And I've seen some recent cases analyzing Danish law for the Virgin Islands and Spanish law for Puerto Rico. Their acquisition was much after 1776 and there are still people alive in those territories whose interests depend on pre-acquisition law. See, e.g. In re Estate of Wright, 207 F.Supp. 912 (D.V.I. 1962) http://tinyurl.com/s9gjv

The United States, Louisiana and Puerto Rico partly excepted, consists of common-law jurisdictions. The common law is determined by judges based on precedent. If there is no precedent, judges need to look for guidance to other states. If there is none there, they need to see what other courts have done, especially other courts with a simiilar background and point of view: the United Kingdom, Ireland, Canada, Australia, New Zealand. If other countries have ruled on similar issues consistently with what the judge thinks is appropriate in his or her jurisdiction, it is confidence-building to point that out. But it's never precedent, it's just in support of reasoning. Nobody would look to foreign law for something that has already been decided by the same or a higher court and thus is binding precedent.

I'm not going to write a whole essay here. I'll just add one point. Comity and forum non conveniens are two principles that have been given increasing emphasis in US courts since they were first articulated by the US Supreme Court in Hilton v. Guyot http://supreme.justia.com/us/159/113/case.html and Piper Aircraft Corp v. Reyno http://supreme.justia.com/us/454/235/case.html respectively. Both principles strongly depend on foreign courts' decisions. You might also look at the whole history of the Llloyd's of London litigation, http://www.snurl.com/lloydata where the pros and cons of English jurisprudence and the English court system were argued ad nauseam all over America, and the English court system won.

Answer 4

The US established many of its laws based on the laws of England, and thus, many of the cases from English Courts have been cited as precedent. It is very rare if it happens at all for a modern case to be decided based soley on English Common Law. Other than that, Courts may look to foreign jurisdictions for guidance on rule interpretation or public policy, but foreign law or precedent is never binding on US courts.

Answer 5

The Supreme Court of the United States of America should consider the Constitution of the United States of America and not any foreign court rulings.

Answer 6

touch an criminal expert as quickly as available. There won't be quotes further on your daughter's case yet there's a reliable risk that her testimony could help convict him of a greater moderen molestation. there is likewise the prospect of a civil healthy, an criminal expert - even the county DA - could be waiting that might assist you identify the suitable course.

Answer 7

it's only the liberal members of the court that want to use foreign law precedents to form opinions on US law. However, they use it only when it jives with an opinion they already have formed. They would never us it on abortion, the US is only 1 or 4 countries in the world that allows abortion on demand.
Another illustration of hypocrisy by liberals.

Answer 8

It should have none, but don't tell that to the Supreme Court, which is the Supreme authority over all.

Answer 9

why that the court for you they won't try foreign cases which they should when they need too