Legal Topics: "Foreign Law" and the U.S. Supreme Court
In Roper v. Simmons, 543 U.S. __ (2005), faced with analyzing the legitimacy of the juvenile death penalty, the majority opinion of the U.S. Supreme Court notes:
"Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in [Trop v. Dulles, 356 U.S. 86 (1958)], the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.”
The Court's usage of "foreign law" produced a number of commentators, including:
- Vicki C. Jackson, CONSTITUTIONAL COMPARISONS: CONVERGENCE, RESISTANCE, ENGAGEMENT, 119 Harv. L. Rev. 109 (2005)(full text link)
- Jeremy Waldron, FOREIGN LAW AND THE MODERN IUS GENTIUM, 119 Harv. L. Rev. 129 (2005)(full text link)
- Ernest A. Young, FOREIGN LAW AND THE DENOMINATOR PROBLEM, 119 Harv. L. Rev. 148 (2005) (full text link)
