The Use of Foreign Decisions by Federal Courts: An Empirical Analysis

This article adds an empirical perspective to the debate over the use of foreign authority by federal courts. It surveys 60 years of federal court practice in citing opinions from foreign high courts using a citation count analysis. The data reveal that federal courts rarely cite to foreign decisions, they do so no more now than they did in the past, and on those few occasions where they do cite to foreign decisions, it's usually not to help them interpret domestic law. Instead, the citation of foreign decisions is best understood as a relatively rare phenomenon of judicial dialogue in cases where international issues are squarely presented by the facts. The article examines those few cases where federal courts have cited foreign decisions in some detail, and briefly considers some implications of the limited use of foreign decisions by federal courts.