On Foreign Law

As mentioned in today's CourtListener, I found myself in a bit of an odd spot. I had to cover a concurrence that directly derogated my own briefing. To be sure, this is bound to happen. This blog only pays so many bills; I still maintain my private practice. And most of the time, I feel reasonably capable of divorcing my opinions from the bare facts of court proceedings. Here, however, reporting only Justice Matthew100x's characterization of my use of real-world legal authority would have, in my estimation, given readers an inaccurate understanding of not only my briefing but of the actual impact of his honor's proposed Rule 1.12 (a rule I support). So I am taking a moment of personal privilege to respond to his honor's concurrence, certainly for my own sake but also to ensure the legal community understands what happened in this case.

To begin, I agree wholeheartedly with the honorable Justice: "Redmont courts should decide Redmont cases under Redmont law." That basic premise drove my brief. The question I sought to answer in my brief was simple: Does a plaintiff have a right to sue the government for a violation of their constitutional rights where the government acted in good faith to comply with a constitutional law? There is no answer in our case law. If there were, the honorable Justice would have cited it when establishing a balancing test for damages in such a case. The absence of any citation to a case or explicit stautory guidance means the Court, in reaching its answer, needed to come up with a rule to employ when applying the law to the question presented. I proposed doing so, using Redmont law.

The honorable Justice wrote: "If litigants want to argue that a constitutional right was violated, they should begin with the Redmont Constitution, the RCCA, the Court Rules, and Redmont precedent." I argued from precisely that perspective. Indeed, the first citation to real-world law does not come until well into the brief. The honorable Justice then builds a straw-man, explaining that in some cases, words in Redmont do not comport with those words' real-life meaning. Choosing "murder," a crime vastly different in impact here than in the real-world, to make this point was rhetorically simple, but it failed to engage with the substance of my brief. Indeed, my brief took pains to show how the real-world doctrines comported with prior Redmont precedents. I was not proposing we change "murder" in Redmont to much the real world; I was arguing that our constitution, not someone else's requires a certain conclusion.

This is the fundamental flaw in the honorable Justice's brief: I could have, without a single citation to non-Redmont sources, made the exact same argument. I could have argued for the creation of the same doctrines. I could have argued for the same outcomes. At no point in my brief, did I suggest Redmont needed to follow the United States's, or Canada's, or the United Kingdom's law. At no point did I suggest that we needed to import wholesale doctrines forged through decades of litigative fires. And at no point did I propose we resolve conflicts between Redmont and real-world doctrines in favor of the real world. I merely illustrated principles that wholly comport with Redmont's jurisprudence using real-world doctrine. Doing so should not have come close to prompting the parade of horribles the honorable Justice trotted out.

It bears repeating that I did so in a context where Redmont law is silent. Certainly, I believe the Court's decision on the question directly presented: "Did the Federal Court err in striking down the law as unconstitutional?" could be sufficiently answered citing only Redmont law. But the question my brief — an amicus brief designed only to offer the Court an additional perspective — addressed was also contemplated in both the appeal and the Court's opinion. I responded to a concerning line of argument I identified in the government's briefing; to wit, that the executive can never be liable for enforcing an unconstitutional law in good faith. The Court had to invent a balancing test; I simply proposed a different one. One that had every bit as much grounding in Redmont law as the Court's.

I support limiting the use of real-world legal sources in Redmont courts to only those cases, like my brief, where they are used to illustrate a common legal principle. I even support restrictions that would have impacted my brief, like barring citations to paywalled legal databases (something I truly regret). But if the honorable Justice believes my brief should have been disallowed, he is proposing something far beyond the plain text of his rule. If the Court saw my argument, grounded in and consistently tied back to Redmont, its statutes and its precedents, and found it "problematic," what it truly wants is not fairness for litigants. What this Court wants is to ban outright any outside principles that could help elucidate the gray areas our young common law still bears.

We, like any fledgling common-law nation, must sometimes look beyond our borders to help us make sense of issues of first impression. It is in our courts' best interest not to get hung up on whence come the principles advocates invoke but to instead ensure that their use of outside principles comports with fundamental fairness. Courts are more than capable of keeping outside principles out of our binding authority. They should tread lightly in keeping them from our nation's advocacy.