Wednesday, June 25, 2014

For Mary Ann Glendon: New Scholarship on Comparative Law

The Winter 2014 issue of the Duquesne Law Review, Volume 52 is a trove of commentary on the relevance of comparative law to U.S. jurisprudence.  Focused on Harvard Professor Mary Ann Glendon's work  on comparative law, the issue begins with an essay by Professor Glendon titled Comparative Law in the Age of Globalization. Glendon's article examines a series of well-known Supreme Court cases (Lawrence, Roper, Graham) relying on comparative law, and also includes a discussion of the uses of comparative law in legislative drafting by, for example, the American Law Institute.

Other contributors to the volume include Michael Rosenfeld, Thomas Kohler, Marco Ventoruzzo (writing on the role of comparative law in shaping corporate statutory reforms) and Kirk Junker.

Glendon strikes an optimistic note, hoping that obstacles to uses of comparative law "can be surmounted, and that the future of international legal studies will be marked by fruitful collaboration and interaction among comparatists, public international lawyers, international business law specialists, and all who labor on behalf of human rights."

However, contributor Kenneth Anderson writes in his essay, Through Our Glass Darkly, that the trend toward citation of foreign law in U.S. constitutional adjudication "seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period."

In the abstract of his article, Anderson writes "[p]ractical politics within the US have a lot to do with this, of course. But other reasons, rooted in global politics, are perhaps now starting to be reflected in the US Supreme Court's jurisprudence regarding a body of otherwise doctrinally quite distinct legal topics -- the Alien Tort Statute, jurisdiction by US courts over acts and actors taking place outside US territory, among others, as well as the de facto trend away from foreign citation in constitutional cases. It has been widely noticed that the US Supreme Court has taken steps in these areas mostly to pull back, constrain, and condition the extraterritorial reach of US courts, at least in the absence of clear legislative direction. The occasional use foreign law by US courts in constitutional adjudication represented the flip side of the reach to universalism that the Court now appears be reining in."

While you're at the Duquesne Law Review site, check out Professor Cheryl Hanna's article on Violence Against Women and human rights in the current Summer issue. Reviewing the legacy of U.S. v. Morrison and Castle Rock v. Gonzales, Professor Hanna then looks to the InterAmerican Commission's critique of U.S. law.  As if acting on the hopes for the future articulated in Glendon's essay -- and breaking free of a narrow focus on U.S. Supreme Court jurisprudence -- Professor Hanna writes that "now when people ask what kind of work I do, what does my scholarship involve, I’ve stopped saying I do women’s rights or violence against women, and I just say, “I’m a human rights worker. I work in human rights in the United States.”

| Permalink


Post a comment