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Comparative Law

Comparative Law . Why study? Lawrence v. Texas (US 2003). Last updated 29 Aug 11. Value of knowing other legal systems. Model for borrowing Gain perspective Discover truths Impose / power. Foreign law in US cases …. Lawrence v. Taylor. US sources US Constitution US Sup Ct case

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Comparative Law

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  1. Comparative Law Why study? Lawrence v. Texas (US 2003) Last updated 29 Aug 11

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

  3. Foreign law in US cases … Lawrence v. Taylor

  4. 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

  5. Foreign sources Foreign statute Anti-sodomy Law of Reformation Parliament (1533) Other countries (brief of Mary Robinson) Foreign court case King v Wiseman (Eng 1718) (also women) Int’l body decision Dudgeon v. UK (ECHR 1981) (Wesern tradition / contra Bowers) Academic writing Wolfson Report on Homosexual Offenses (UK 1963) (rec repeal) • Foreign sources • Foreign statute • “many countries … retain criminal prohibitions on sodomy” • Foreign court case • sodomy was “criminal offense at common law” • Canadian court recognizes right to gay marriage. Halpern v Toronto (Ontario App 2003) • Reporting • Dozens in Canada follow gay couple’s lead, Wash Post (2003)

  6. Discussion Breyer-Scalia “For years people all over the world have cited the Supreme Court, why don’t we cite them occasionally.” “If you read the Federalist Papers, it’s full of statements that they didn’t have a whole lot of respect for rules in European countries.”

  7. Majority Opinion 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” 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 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 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 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 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 Mary Ann Glendon

  8. Foreign law in US courts … “Law” or “fact”?

  9. 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.

  10. Is comparative law more legitimate when used by legislators or by judges?

  11. The end

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