Comparative law
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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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Comparative law

Comparative Law

Why study?

Lawrence v. Texas (US 2003)

Last updated 29 Aug 11

Value of knowing other legal systems

Value of knowing other legal systems

  • Model for borrowing

  • Gain perspective

  • Discover truths

  • Impose / power

Foreign law in us cases

Foreign law in US cases …

Lawrence v. Taylor

Comparative law

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

Comparative law

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)

Comparative law

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.”

Comparative law

Majority Opinion


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”


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



Other countries


Stare decisis is not written in stone

BvH not correct


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

Foreign law in us courts

Foreign law in US courts …

“Law” or “fact”?

Comparative law

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

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

Comparative law

The end

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