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http://ssrn.com/abstract=1081854
 
 

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Principle or Ideology? A Comparativist Perspective on the U.S. Controversy Over Supreme Court Citations to Foreign Authorities


Michel Rosenfeld


Benjamin N. Cardozo School of Law

2008

Cardozo Legal Studies Research Paper No. 213

Abstract:     
This article examines the much debated controversy concerning citations by the U.S. Supreme Court to foreign authorities in the course of deciding constitutional issues from the perspective of comparative constitutional law. This examination is set against the three dominant views in the field: that constitutions address similar issues and that they ought to reach similar results, that they address the same issues but that they ought to reach different results given relevant differences among national and constitutional identities, and that comparativism is mainly ideological, and for the most part steeped in Western biases. Analyzing the U.S. jurisprudence on unenumerated rights generally, and that concerning the rights of homosexuals in particular, subjects that are highly controversial even in the absence of the foreign citation controversy, the article concludes that the whole controversy over citations to foreign authorities is but a sideshow to the main ideological wars over the proper limits of constitutional interpretation. In the course of this analysis, the article explores the scope and limitations of legitimate comparative constitutional work.

Number of Pages in PDF File: 34

Keywords: comparative constitutional law, citations, foreign sources, foreign authorities, constitutional interpretation

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Date posted: January 9, 2008 ; Last revised: September 28, 2011

Suggested Citation

Rosenfeld, Michel, Principle or Ideology? A Comparativist Perspective on the U.S. Controversy Over Supreme Court Citations to Foreign Authorities (2008). Cardozo Legal Studies Research Paper No. 213. Available at SSRN: http://ssrn.com/abstract=1081854 or http://dx.doi.org/10.2139/ssrn.1081854

Contact Information

Michel Rosenfeld (Contact Author)
Benjamin N. Cardozo School of Law ( email )
55 Fifth Ave.
New York, NY 10003
United States
212-790-0234 (Phone)
212-790-0205 (Fax)
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