Sarah Cleveland on use of "international law" to interpret US law

The Supreme Court case of DONALD P. ROPER v. CHRISTOPHER SIMMONS, 125 S. Ct. 1183; 2005 U.S. LEXIS 2200 (March 1, 2005), in invoking law external to the United States to justify the 5-4 decision, continued the debate about whether "international law" should be used to interpret US law.

In the particular area of patent law, legal conclusions of foreign tribunals are not deemed relevant to the U.S. proceedings, even on the U.S. counterpart case. HOWEVER, in the debate on patent quality, the current argument of the National Academy of Sciences (NAS) relies on differences in grant rates between foreign countries and the U.S., even though different patent applications AND different rules are involved. The idea that foreign grant rates can be used to interpret the U.S. grant rate, and to declare it "too high" should be rejected.

from Sarah H. Cleveland, Is There Room for the World in Our Courts?, Washington Post, March 20, 2005:

(...)In Roper v. Simmons, however, the 5-4 majority resoundingly supported the relevance of international law. And Justice Sandra Day O'Connor, in dissent, nevertheless agreed that "the existence of an international consensus . . . can serve to confirm the reasonableness of a consonant and genuine American consensus."

(...)
Roper is the most recent battleground on which Justices Antonin
Scalia and Stephen Breyer have acted as spokesmen for the opposing camps. Scalia has asserted that "modern foreign legal materials can never be relevant to an interpretation of . . . the meaning of the U.S. Constitution." He is supported by Justice Clarence Thomas, who has protested the court's apparent willingness to "impose foreign moods, fads, or fashions on Americans." Both men emphasize
the singularity (and superiority) of the American system.