Citations of Foreign Decisions in Australian State Supreme Courts Over the Course of the Twentieth Century: An Empirical Analysis

Abstract

Following the United States Supreme Court decisions in Atkins v Virginia, 536 U.S. 304 (2002), Lawrence v Texas, 539 U.S. 558 (2003) and Roper v Simmons, 543 U.S. 551 (2005) there has been much discussion about whether, and to what extent, courts in the United States should, and do, cite foreign law. While there has also been some empirical research on this topic for United States courts using citation analysis, there has been little comparative perspective. This study offers a comparative perspective by providing a citation analysis of foreign law cited by the six Australian State Supreme Courts at decade intervals over the period 1905 to 2005. The main findings are that over this period there has been a significant fall in the proportion of English cases cited; however, the proportion of citations of foreign precedent from countries other than England has remained consistently low. The study examines which specific English courts have been cited and which countries other than England get cited. The study also considers which State Supreme Courts cite the most foreign precedent and the areas of the law in which foreign precedent is most often cited. The study concludes by briefly considering the implications of citing little foreign precedent for the role of the State courts in the development of the common law in Australia.

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