Olympic Airways v. Husain, 540 U.S. 644, 15 (2004)

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Scalia, J., dissenting

Justice Scalia, with whom Justice O'Connor joins as to Parts I and II, dissenting.

When we interpret a treaty, we accord the judgments of our sister signatories " 'considerable weight.' " Air France v. Saks, 470 U. S. 392, 404 (1985). True to that canon, our previous Warsaw Convention opinions have carefully considered foreign case law. See, e. g., El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U. S. 155, 173-174 (1999); Eastern Airlines, Inc. v. Floyd, 499 U. S. 530, 550-551 (1991); Saks, supra, at 404. Today's decision stands out for its failure to give any serious consideration to how the courts of our treaty partners have resolved the legal issues before us.

This sudden insularity is striking, since the Court in recent years has canvassed the prevailing law in other nations (at least Western European nations) to determine the meaning of an American Constitution that those nations had no part in framing and that those nations' courts have no role in enforcing. See Atkins v. Virginia, 536 U. S. 304, 316-317, n. 21 (2002) (whether the Eighth Amendment prohibits execution of the mentally retarded); Lawrence v. Texas, 539 U. S. 558, 576-577 (2003) (whether the Fourteenth Amendment prohibits the criminalization of homosexual conduct). One would have thought that foreign courts' interpretations of a treaty that their governments adopted jointly with ours, and that they have an actual role in applying, would be (to put it mildly) all the more relevant.

The Court's new abstemiousness with regard to foreign fare is not without consequence: Within the past year, appellate courts in both England and Australia have rendered decisions squarely at odds with today's holding. Because the Court offers no convincing explanation why these cases should not be followed, I respectfully dissent.


The Court holds that an airline's mere inaction can constitute an "accident" within the meaning of the Warsaw Con-

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