scott lemieux slammed justice scalia for citing a house of lords opinion in a recent dissent because in the past scalia has led the charge against citing foreign law in american courts. atrios picked up on it and used the lemieux post to make a broader point.
there's a problem. lemieux's criticism doesn't really work. the right's campaign against citing foreign law generally doesn't include a ban on citing british law. when the u.s. was formed both the federal government and all the u.s. states (except louisiana when it became a state) adopted british common law. because they overtly adopted british law, british cases that came out prior to 1776 essentially became u.s. law. and british cases from after 1776 are still generally acceptable because they are interpreting the same background common law system that u.s. courts are using. there are a ton of legal doctrines that are part of the u.s. legal system that are based on old british rulings. (e.g. the rule in shelley's case). as far as i know, the anti-foreign law faction has never campaigned against that stuff.
even though in the dissent that lemieux referred to scalia was citing a house of lords case from 1942, it still would be viewed as persuasive (though not binding) precedent to judicial conservatives. i believe they don't have much of a beef with british opinions, they just do with everyone else's.
