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Comparative Law: Reasons to Study

Comparative Law: Reasons to Study. Lawrence v. Texas (US 2003). Value of knowing other legal systems. Model: Borrow techniques Expand the number of “laboratories” Utilitarian: find methods, language, exceptions Perspective: Appreciate own Recognize policies, history, purposes

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Comparative Law: Reasons to Study

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  1. Comparative Law: Reasons to Study Lawrence v. Texas (US 2003)

  2. Value of knowing other legal systems • Model: Borrow techniques • Expand the number of “laboratories” • Utilitarian: find methods, language, exceptions • Perspective: Appreciate own • Recognize policies, history, purposes • Like studying foreign language (even dead ones) • Discover: universal truths • Test results of different rules • Intellectual curiosity • Power: compelled by reciprocity, trade, empire • International trade/ relations demands • US judges traveling overseas • Prop up foreign legal regimes

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

  4. Background Texas criminalizes homosexual sodomy Petitioner charged and convicted Petitioner challenges conviction State defends statute Sources Texas statute US Constitution (EP and DP clauses) Bowers v. Hardwick (1986) Lawrence v. Texas (US 2003)

  5. Review under DP Review B v H issue was “fundamental right” Issue should be “liberty” Stare decisis not locked in stone Sources Ga statute US Sup Ct [nothing] US Sup Ct Lawrence v. Texas (US 2003)

  6. Consider history Longstanding history against homosexuals Pre-colonial experience “homosexuality” new notion American laws (20th C) Only 9 states Some abolish Sources English statute / English cases US law review US state statutes US state statutes US state cases Lawrence v. Texas (US 2003)

  7. Moral stance Court not moral codifier Judeo-Christian tradition unclear History not the only interpretive source MPC did not criminalize Sources US Sup Ct US law review US Sup Ct ALI (scholars) Lawrence v. Texas (US 2003)

  8. Antisodomy Ignored in US Not all states adopt prohibition Ignored in many states Gone elsewhere Repealed in UK, after recommendation Invalidated in Europe (Council of Europe) Sources US state statutes US Sup Ct Committee (Scholars) / UK Parliament ECHR Lawrence v. Texas (US 2003)

  9. Deficiencies BvH 25 states before, now only 13 No prosecutions in Texas Sources US state statutes Texas case Lawrence v. Texas (US 2003)

  10. Shift in moral code Supreme Court cases Casey (abortion rights upheld) Romer (Colorado can’t withdraw protections) Criticism of BvH US Europe Other countries Sources US Sup Ct US Sup Ct US state cases ECHR (Dudgeon-UK) Mary Robinson amicus Lawrence v. Texas (US 2003)

  11. Scalia dissent New liberty interest not fundamental right Can’t base on criticism Court relies wrongly Casey (anti-abortion) Roe criticized BvH followed Sources US Sup Ct US Sup Ct US law reviews, books US state cases Lawrence v. Texas (US 2003)

  12. Scalia dissent Texas policy BVH history OK Criminal laws 203 prosecutions MPC resisted Looking to foreign law – meaningless dicta Sources Texas statute US state statutes US law review US law review US Sup Ct Lawrence v. Texas (US 2003)

  13. Scalia dissent Rational basis Court not take sides in culture wars Congress has not acted “nothing against homosexuals” - Texas Path to gay marriage Sources US Sup Ct Cong legislative history [nothing] Canada case / Wash Post article Lawrence v. Texas (US 2003)

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