Suchergebnisse

After the decisions in Lawrence v. Texas (2003) and Roper v. Simmons (2005), the Supreme Court's use of foreign law became a hotly contested issue in Congress, the media, and among conservative political activists. Lawrence Baum (2006) argues the Justices are sensitive and respond to the reaction of external audiences. The reaction of the Justices to the controversy over the use of foreign law indicates that the Justices care more about cases than just their disposition or particular policy agendas, and provides further evidence that the Justices take into account their relationships with othe.

The European Convention on Information on Foreign Law came into being as a result of formal recognition by the Council of Europe that increasing movement of persons and goods across European frontiers has resulted in an interpenetration of laws and the attendant need to take foreign law into consideration. Thus, in its explanatory report on the Convention, the Council of Europe noted that it "often happens that, under a rule of conduct or laws, a court is called upon to apply a principle of foreign law, particularly in questions of contract and of family law or of the status and capacity of persons."

Abstract:The judicial use of foreign law in constitutional cases is often unsatisfactorily explained in terms of persuasive authority, judicial learning or judicial dialogue. In this article, I argue that the central case of the judicial use of foreign law involves judges treating foreign case law as theoretically, rather than practically, authoritative. The justification for this approach lies in how case law emerges from a process that is structured in such a way that its outcomes deserve respect. There is, in contrast, no justification for any attempt on the part of judges to treat constitutional cases as an opportunity for interjurisdictional judicial dialogue.