A Chequer-Board of Nights and Days

Stuart Buck points out that for all of Justice Breyer's paeans in favor of applying foreign law in Supreme Court cases, he was unwilling to consider evidence from foreign jurisdictions in Zelman v. Simmons-Harris demonstrating that school choice would not cause "social dissension" through "religious favoritism."

I have always opposed the applicability of foreign law as precedent in American court cases because--among other reasons--it would lead to cherry-picking on the part of the jurist in the jurist's effort to find foreign law that supports his/her position. Justice Breyer demonstrated this very cherry-picking tendency in his dissent in Zelman and so pronounced is the tendency, that it actually caused Justice Breyer to ignore evidence from a foreign jurisdiction that did not fit in with his preconceived mindset on Zelman. One can easily imagine him displaying the same tendencies to cherry-pick when it comes to applying--or refusing to apply--case law from foreign jurisdictions depending on whether that case law helps or hurts his side of the argument.