Which countries count? Lawrence V. texas and the selection of foreign persuasive authority

Abstract

This Article provides a selection process for foreign persuasive authority within the context of comparative analysis. In Lawrence v. Texas, the Supreme Court struck down as unconstitutional a state statute relying, in part, on select foreign sources of authority. Recent scholarship has attacked the Lawrence Court's use of foreign authority, and in particular, its apparent self-serving and biased penchant for preferring materials from Western democracies at the expense of all other countries. This Article responds to that charge. This Article argues that by combining the results of an historical analysis of the use of foreign authority with modern trends in social sciences and legal scholarship, it is possible to construct a framework within which the selection of appropriate foreign materials for comparative analysis by U.S. courts can operate. First, this Article traces the history of comparative analysis in the United States and, describing its normative impulse, illustrates that the ethos of comparative law in this country has always been one of informed nation selection. Based upon this notion, this Article then presents a tri-partite framework in which the selection of foreign persuasive authority can take place: a framework which, depending on the specific context of the case, combines the democratic credentials of the originating country with such country's societal affinities to the United States. This Article concludes by showing that the Lawrence majority's selections complied with this framework, thus demonstrating that a cohesive and principled process lay behind the Court's particular choices of foreign persuasive authority.

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