Comparative Law: Why Study?

1. Comparative Law: Why Study? Lawrence v. Texas (US 2003) Last updated 08 Jan 07

2. Value of knowing other legal systems • Model for borrowing • Gain perspective • Discover truths • Impose / power

3. Lawrence v. Texas (US 2003) Discussion Scalia-Breyer

4. Sources US sources US Constitution US Sup Ct case State statute State court case Professional writing Academic writing Foreign sources Foreign statute Foreign court case Int’l body decision Academic writing Majority Dissent

5. Majority Background Texas criminalizes homosexual sodomy Review B v H under DP Analysis Antisodomy laws in disrepute History Moral stance Ignored in US / elsewhere States see B v H as deficient Shift in moral code Holding Stare decisis not ironclad B v H overruled Sources US sources US Constitution US Sup Ct case State statute State court case Professional writing Academic writing Foreign sources Foreign statute Foreign court case Int’l body case Academic writing

6. Scalia dissent Majority expands “liberty” interest Consider B v H history Don’t look to foreign law “meaningless dicta” Other countries retain! Texas statute has rational basis Court not side in culture wars Could be path to gay marriage Sources US sources US Constitution US Sup Ct case State statute State court case Professional writing Academic writing Foreign sources Foreign statute Foreign court case Int’l body case Academic writing

7. Foreign law in US courts …

8. Federal Rules of Civil Procedure Rule 44.1: Determination of foreign law A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination shall be treated as a ruling on a question of law.

9. Background Texas criminalizes homosexual sodomy Petitioner charged and convicted (Tx statute) Petitioner challenges conviction (EP / DP) State defends statute (Bowers v. Hardwick, 1986) Review under DP Review B v H issue was seen as “fundamental right” Issue should be “liberty” Sources US sources US Constitution US Sup Ct case State statute State court case Professional writing Academic writing Foreign sources Foreign statute Foreign court case Int’l body case Academic writing

10. Consider No longstanding history against homosexuals Pre-colonial experience “homosexuality” new notion American laws (20th C) Only 9 states prohibit Some abolish prohibitions No clear moral stance Court not moral codifier Judeo-Christian tradition unclear History not the only interpretive source MPC did not criminalize Sources US sources US Constitution US Sup Ct case State statute State court case Professional writing Academic writing Foreign sources Foreign statute Foreign court case Int’l body case Academic writing

11. Consider Antisodomy laws ignored in US Not all states adopt Many states ignore Antisodomy laws gone elsewhere UK repeals, after recommendation Invalidated in Europe (Council of Europe) States see BvH as deficient 25 states once followed, now only 13 No prosecutions in Texas Sources US sources US Constitution US Sup Ct case State statute State court case Professional writing Academic writing Foreign sources Foreign statute Foreign court case Int’l body case Academic writing

12. Shift in moral code Supreme Court cases Casey (abortion rights upheld) Romer (Colorado can’t withdraw protections) Criticism of BvH US Europe Other countries Holding Stare decisis is not written in stone BvH not correct Overruled Texas court overruled Sources US sources US Constitution US Sup Ct case State statute State court case Professional writing Academic writing Foreign sources Foreign statute Foreign court case Int’l body case Academic writing

13. Scalia dissent New liberty interest Not fundamental right Can’t base on criticism Court relies wrongly Casey (anti-abortion) Roe criticized BvH followed Respect Texas policy Consider BvH history Criminal laws 203 prosecutions MPC resisted Sources US sources US Constitution US Sup Ct case State statute State court case Professional writing Academic writing Foreign sources Foreign statute Foreign court case Int’l body case Academic writing

14. Scalia dissent Don’t look to foreign law “meaningless dicta” Other countries retain antisodomy laws Texas statute has rational basis Court not take sides in culture wars Congress has not acted “Nothing against homosexuals” - Texas Could be path to gay marriage Sources US sources US Constitution US Sup Ct case State statute State court case Professional writing Academic writing Foreign sources Foreign statute Foreign court case Int’l body case Academic writing