Discussion Board

Course

nInstitution

nDate

nDiscussion Board

nRoper v. Simmons was a decision of the Supreme Court in 2005, which stated that it is unconstitutional to impose a death sentence for crimes committed under juvenile in the United States (Marshall, 3). In the roper, judges articulated the general theory of citations and the authority of foreign law.

nJustice Kennedy argues that it was appropriate to consider foreign law into account and that referring to the laws of other countries could be instructive of the courts interpretation of the Eighth amendment (Marshall, 4). However, Kennedy did not explain the jurisprudence behind his argument. He did not articulate theory of citations to foreign law that could squarely refute.

nThe theory of citation has no complete jurisprudence (Sarat, 8). It raises numerous questions where foreign law should be cited or should not be cited, e.g. Private law compared to constitutional law. Moreover, authority accorded to foreign law (conclusive or persuasive) and about which foreign legal systems should be cited (democracy or autocracy). The theory should contain provisions justify the use of foreign law in all appropriate cases (Sarat, 7). In addition, the theory needs to be persuasive to cover all practices in law.

nOtherwise, Justice Scalia argued that the courts citation of foreign law was opportunistic and unprincipled (Schultz, 696). However, his argument does not mean that there cannot be a legitimate theory to support the practice. In addition, it does not follow that he discards stare decisis or he thinks it is not worthy establishing the theory of precedent (Sarat, 7). Moreover, theory of citation of foreign law should not be rejected on the basis of opportunist rather it should be rejected only when, there are inconsistent and unprincipled citations under the auspices of such theory (Schultz, 696).

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nWorks cited

nMarshall, Thomas R. Public Opinion And The Rehnquist Court. 1st ed. Albany, NY: State University of New York Press, 2008. Print.

nSarat, Austin. Is The Death Penalty Dying?. 1st ed. Bingley: Emerald Group Publishing Limited, 2009. Print.

nSchultz, David A. Encyclopedia Of The United States Constitution. 1st ed. New York: Facts On File, 2009. Print.