Comparative law why study
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Comparative Law: Why Study?. Lawrence v. Texas (US 2003). Last updated 08 Jan 07. Value of knowing other legal systems. Model for borrowing Gain perspective Discover truths Impose / power. Lawrence v. Texas (US 2003). Discussion Scalia-Breyer. Sources US sources US Constitution

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Comparative Law: Why Study?

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Comparative law why study

Comparative Law: Why Study?

Lawrence v. Texas (US 2003)

Last updated 08 Jan 07


Value of knowing other legal systems

Value of knowing other legal systems

  • Model for borrowing

  • Gain perspective

  • Discover truths

  • Impose / power


Lawrence v texas us 2003

Lawrence v. Texas (US 2003)

Discussion Scalia-Breyer


Comparative law why study

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


Comparative law why study

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


Comparative law why study

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


Foreign law in us courts

Foreign law in US courts …


Federal rules of civil procedure

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.


Comparative law why study

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


Comparative law why study

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


Comparative law why study

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


Comparative law why study

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


Comparative law why study

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


Comparative law why study

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


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