2 Publicist 1 (2009)

handle is hein.journals/public2 and id is 1 raw text is: 










Remarks on State Courts and Transnational Law:
    Institutional Constraints and Transformative
    Opportunities for Economic and Social Rights


                                 By
                         Martha F. Davis*

    Recently, Justice Ruth Bader Ginsburg remarked, I frankly
don't understand all the brouhaha lately from Congress and even
from some of my colleagues about referring to foreign law.
Calling the controversy    a passing phase, she asked why
shouldn't we look to the wisdom of a judge from abroad with at
least as much ease as we would read a law review article from a
professor?'
    The debate referenced by Justice Ginsburg concerning federal
judicial citation of transnational law is well-known.2 Indeed, the



       Martha F. Davis is Professor of Law and Co-Director of the Program
on Human Rights and the Global Economy at Northeastern University School of
Law. This essay is based on remarks delivered at the annual Stephen Reisenfeld
Symposium. Thanks are due to Elizabeth Persinger, Cassandra Brulotte and
Rick Doyon for their assistance.
    1  Adam Liptak, Ginsburg Shares Views on Influence of Foreign Law on
Her Court and Vice Versa, N.Y. TIMES, June 15, 1990, at Al.
    2  For an overview of the controversy, see Diane Marie Amann, Just
Right?: Assessing the Rehnquist Court's Parting Words on Criminal Justice:
International Law and Rehnquist Era Reversals, 94 GEO. L.J. 1319, 1324-30
(2006); Florence Wagman Roisman, Using International and Foreign Human
Rights Law in Public Interest Advocacy, 18 IND. INT'L & CoMP. L. REv. 1, 7-8
(2007) (describing bitter divide in current Supreme Court on use of international
opinion when interpreting the constitution). See generally Sarah Cleveland, Our
International Constitution, 31 YALE J. INT'L L. 1 (2006) (reviewing current

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