Journal Article•
Against Foreign Law
TL;DR: The European Court of Human Rights (ECHR) as discussed by the authors has been used by the United States Supreme Court for guidance in interpreting the U.S. Constitution in several controversial, high-profile cases.
Abstract: In recent years, several Supreme Court Justices have looked to the decisions of foreign and international courts for guidance in interpreting the U.S. Constitution. This practice has occurred in several controversial, high-profile cases. Roper v. Simmons' outlawed application of the death penalty to offenders who were under eighteen when their crimes were committed. Lawrence v. Texas2 struck down a state law that criminalized homosexual sodomy. Atkins v. Virginia' held against the execution of mentally retarded capital defendants. All three cite foreign and international precedents. In Roper, the Court, per Justice Kennedy, found it \"proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty .... The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.\" 4 The Court relied on a provision of the United Nations Convention on the Rights of the Child-a treaty the United States has not ratified-and on amicus briefs by the European Union and interested foreign observers. In Lawrence, Justice Kennedy's majority opinion cited decisions of the European Court of Human Rights to conclude that prohibiting homosexual sodomy is at odds with the current norms of
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Dissertation•
28 Jun 2018
TL;DR: In this paper, a comprehensive exploration of the mechanisms, extent, purpose, and effects of transnational judicial dialogue of the Supreme Court and its justices is presented, with the focus on the transnational nature of the dialogue.
Abstract: Through personal interviews with ten current and former judges of the SCC, case analyses, a review of archival documents, and a quantitative examination of all judgments between 20002016, this study offers a comprehensive exploration of the mechanisms, extent, purpose, and effects of transnational judicial dialogue of the SCC and its justices. Contrary to expectations, SCC participation in this dialogue does not occur only through the citation of foreign judgments. Instead, the SCC incorporates almost all forms of non-domestic legal sources of both an international and a comparative nature (legal mechanisms). However, the judicial dialogue resulting from genuine engagement, interactions, and exchanges in extra-curial activitieswhich vary from face-to-face meetings to formal relationships and creating judicial organizations (extra-judicial mechanisms)is far more extensive than the one that forms around legal mechanisms. Remarkably, judicial conversation occurs not only through courts as institutions but also through individual justices, who are increasingly becoming key actors. This study reveals that transnational judicial dialogue is part of the broader epistemic dissemination of knowledge, and its multifaceted development is driven by a set of reasons that are, on the one hand, pragmatic, historical, diplomatic, and universal, but are, on the other, individual, institutional, national, transnational, and global.
Significantly, this study finds both legal and extra-judicial forms of transnational judicial conversation may have tangible impacts on SCC decision-making. Judicial dialogue conducted through legal mechanisms sometimes directly influences resulting opinions. Judicial dialogue through extra-judicial activities also arguably influences decision-making, albeit indirectly. Although less noticeable, such interactions prompt the SCC to reference both a greater number and a higher quality of non-domestic legal sources. Another crucial finding is that transnational judicial conversations have a demonstrable impact on court management, other internal practices and procedures, and may also influence individual judges. Although beyond the aim of this study, the collected data suggest the effect of judicial dialogue reaches beyond the Court, having both a domestic and transnational/international influence. Finally, transnational judicial dialogue appears to be a significant factor fostering the evolution of the role of judges from interpreters of the law to policy-makers to their modern position as diplomats, networkers, and crucial actors in foreign relations, a role that certainly cannot continue without debate.
38 citations
Journal Article•
TL;DR: A century ago, many Enlightenment liberals held firmly to classical and Christian teachings that exclusive and enduring monogamous marriages are the best way to ensure paternal certainty and joint parental investment in children who are born vulnerable and dependent on their parents' mutual care as mentioned in this paper.
Abstract: This Article shows that many Enlightenment liberals defended traditional family values and warned against the dangers of sexual libertinism and marital breakdown. While they rejected many traditional teachings in their construction of modern liberalism, Enlightenment liberals held firmly to classical and Christian teachings that exclusive and enduring monogamous marriages are the best way to ensure paternal certainty and joint parental investment in children who are born vulnerable and dependent on their parents' mutual care. Stable marital households, furthermore, are the best way to ensure that men and women are treated with equal dignity and respect, and that husbands and wives, and parents and children, provide each other with mutual support, protection, and edification throughout their lifetimes. The positive law of the state must not only support the marital family but also outlaw polygamy, fornication, adultery, and "light divorce" that violate the other spouse's natural rights as well as desertion, abuse, neglect, and disinheritance that violate their children's natural rights to support, protection, and education from their parents. This argument about the natural norms and laws of sex, marriage, and family life, was adumbrated by Aristotle, elaborated by Thomas Aquinas, and then extended by scores of later theologians, philosophers, and jurists. Many of the great architects of Western liberalism embraced these traditional teachings and defended them with arguments from nature, reason, custom, fairness, prudence, utility, pragmatism, and common sense. Their arguments echoed loudly in sundry Anglo-American common law texts, statutes, and cases until the twentieth century, and they remain instructive even for our post-modern polities and families.INTRODUCTIONFor better or worse, we are in the midst of a family law revolution that is upending millennium-long laws and customs of the West.1 A century ago, American law defined marriage as an exclusive and enduring monogamous union between a man and a woman with the freedom and capacity to marry each other.2 Marriage was considered to be the heart of the family and household, and it was designed for the mutual love and support of husband and wife, their mutual protection from sexual temptation, and their mutual procreation, nurture, and education of children. The law required that engagements be formal and that marriages be contracted with parental consent and witnesses and with a suitable waiting period, sometimes accompanied by the publication of banns. It required marriage licenses and registration and solemnization before civil authorities, religious authorities, or both. It prohibited marriages between couples with various blood and kin ties identified in the Mosaic and Roman law. It discouraged marriage where one party was impotent or had a contagious disease that precluded sex and procreation or physically endangered the other spouse. Couples who sought to divorce had to publicize their intentions, to petition a court, to show adequate cause or fault, and to make provision for the dependent spouse and children. Criminal laws outlawed fornication, adultery, prostitution, sodomy, polygamy, incest, contraception, abortion, and other perceived sexual offenses. Tort laws held third parties liable for seduction, enticement, loss of consortium, or alienation of the affections of one's spouse. Many of these legal rules had millennium-long roots in the civil law, canon law, and common law traditions of the West, with several rules going deeper still into ancient Greek and Roman laws.3Today, much of this traditional family law has fallen or been pushed aside in favor of new cultural and constitutional norms of sexual liberty, privacy, and autonomy.4 Marriage is viewed increasingly at law and at large today as a private contract to be formed, maintained, and dissolved as the parties see fit. Requirements of parental consent and witnesses to the formation of engagement and marital contracts have largely disappeared. …
34 citations
01 Apr 2019
31 citations
01 Apr 2019
TL;DR: Witte as discussed by the authors defends the fundamental place of the marital family in modern liberal societies and encourages reticent churches to embrace the rights of women and children, as Christians have long taught, and encourages modern states to promote responsible sexual freedom and family relations.
Abstract: This book defends the fundamental place of the marital family in modern liberal societies. While applauding modern sexual freedoms, John Witte, Jr also defends the traditional Western teaching that the marital family is an essential cradle of conscience, chrysalis of care, and cornerstone of ordered liberty. He thus urges churches, states, and other social institutions to protect and promote the marital family. He encourages reticent churches to embrace the rights of women and children, as Christians have long taught, and encourages modern states to promote responsible sexual freedom and family relations, as liberals have long said. He counsels modern churches and states to share in family law governance, and to resist recent efforts to privatize, abolish, or radically expand the marital family sphere. Witte also invites fellow citizens to end their bitter battles over same-sex marriage and tend to the vast family field that urgently needs concerted attention and action.
30 citations
11 Apr 2019
29 citations
References
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01 Jan 2003
TL;DR: In this paper, the authors identify the preconditions under which regulatory globalization is most likely to occur and identify the conditions for regulatory globalization to take place in several ways, such as agreements with corresponding regulators in other jurisdictions and agree to coordinate their efforts, or regulatory institutions such as the Bank for International Settlements in Basel, Switzerland.
Abstract: In this Article, I identify the preconditions under which regulatory globalization is most likely to occur. Regulatory globalization is the process by which regulatory agencies extend their reach internationally. It can occur in several ways. For example, regulators can enter into agreements with corresponding regulators in other jurisdictions and agree to coordinate their efforts. Alternatively, regulators can form international regulatory institutions, such as the Bank for International Settlements in Basel, Switzerland, that meet formally and promulgate regulations such as the Basle Accord on bank capital.
36 citations