Selective Concern for International Law
American lawyers, who are overwhelmingly liberal, cite foreign law when it is politically inconvenient, and ignore it when it isn’t. They like to cite it to argue against the death penalty, claiming that since most European countries don’t have capital punishment, the death penalty must be against “customary international law” and the weight of world opinion (even though ordinary citizens in many European countries, like the United Kingdom, typically support the death penalty).
But they ignore foreign law and world opinion when it calls into question liberal policies in the United States. One classic example is the horror that most countries’ courts have for the American practice of letting virtually unguided civil juries award punitive damages. In most of the world, it is forbidden for a civil court to award punitive damages.
Another example is abortion; while most European countries recognize the right to an abortion, they recognize that that right, like all rights, has limits, and typically require that abortions be performed prior to the end of the first trimester (unlike in the United States, where third-trimester partial-birth abortion was long de facto legal, and remains difficult to regulate as a result of court rulings).
Another example is the puzzlement many immigrants have over the multibillion dollar lawsuits against phone companies for cooperating with the government after 9-11. The belief by many liberal commentators that the government should have to obtain a warrant before monitoring communications with foreign terrorists strikes immigrants like my wife, a French citizen, as completely bonkers. So, too, does the claim that the phone companies should be subject to punitive damages, even if the government itself doesn’t have to pay a dime. (Moreover, the text of the Fourth Amendment does not purport to require warrants for every conceivable form of monitoring. It merely requires that searches not be “unreasonable,” and that when warrants actually are required — such as for searches of our homes — that the warrant be supported by a finding of “probable cause”).