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INT-LAW  June 2008, Week 5

INT-LAW June 2008, Week 5

Subject:

Use of foreign and international law in U.S. constitutional interpretation (Roper v. Simmons, Scalia, etc. at the JSI in D.C., June 25-28, 2008)

From:

Lyonette Louis-Jacques <[log in to unmask]>

Reply-To:

International Law Librarians List (Int-Law)

Date:

Sun, 29 Jun 2008 23:46:51 -0500

Content-Type:

TEXT/PLAIN

Parts/Attachments:

Parts/Attachments

TEXT/PLAIN (112 lines)

Bonjour Int-Law!  I attended the 2008 Joint Study Institute (JSI) this 
past week at the Georgetown University Law Center in Washington, D.C. on:

Harmonization and Confrontation:  Integrating Foreign and International 
Law into the American Legal System

Papers, PowerPoints, and handouts from the Institute will be posted/linked 
to here.  Links to the audio and transcript of the oral argument in Roper 
v. Simmons are below, plus a video recording of an earlier Scalia/Breyer 
debate on the topic of the "Constitutional Relevance of Foreign Court 
Decisions" via C-SPAN.  Ciao, Lyo ([log in to unmask]):

http://www.aallnet.org/committee/jsi/program/index.htm

There were over 50 delegates including law librarians from the U.S., 
Australia, Canada, Ireland, New Zealand, and the UK.

Much of the discussion focused on the U.S. Supreme Court's Roper v. 
Simmons case.  Hopefully, when the Institute materials are posted, y'all 
will get a feel for what a wonderful program the JSI was!:

543 U.S. 551 (2005)
http://www.supremecourtus.gov/opinions/04pdf/03-633.pdf
http://www.oyez.org/cases/2000-2009/2004/2004_03_633/

Social Change in the United States: A Role for International Law?

"In Roper v. Simmons the United States Supreme Court confirmed that the 
American standards of decency relating to issues such as the use of the 
death penalty in juvenile offender cases in the United States have 
evolved, based partially on an awareness of how other countries and the 
international community have responded to these types of issues. Justice 
Kennedy, writing for the Court in Roper, noted that the execution of 
juvenile offenders in the United States violated several international 
treaties specifically. Has this application of international law developed 
since Roper and will it expand in to other issues? Will advocates for 
social justice in the United States push for more reliance on 
international human rights standards and strategies to advance social 
change in the United States?"

http://www.wilmerhale.com/seth_waxman/

A major highlight of the JSI was the presentation by Seth P. Waxman,
Partner, WilmerHale, Washington, D.C.  Mr. Waxman took us through his
process of preparing for the oral argument as attorney for Simmons 
before the Supreme Court, highlighted some of his arguments that use of 
the death penalty in this case under the 8th Amendment was unusual, 
cruel, counter to the "evolving standards of decency that mark the 
progress of a maturing society" and international practice, and brought 
to life how the actual oral argument before Justices Scalia, Kennedy, et 
al. worked on the subject of use of foreign and international law.

He read out loud relevant sections of the transcript of the oral 
argument.  It really captured the tennis ball/ping pong ball nature of 
the proceedings...:-):

Written transcript
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/03-633.pdf

Audio from Oyez Project
http://www.oyez.org/cases/2000-2009/2004/2004_03_633/argument/
http://www.oyez.org/cases/2000-2009/2004/2004_03_633/argument/03-633_20041013-argument.mp3

Brief for the Respondent (Simmons)(discussion of international practice 
against execution is at pages 47-50):

The National Consensus Is Consistent With Worldwide Revulsion Against The 
Execution Of Juvenile Offenders
http://supreme.lp.findlaw.com/supreme_court/briefs/03-633/03-633.mer.resp.pdf

Summary of Roper from Oyez:

"A Tennessee trial court sentenced Thompson to death for murder. Thompson 
made unsuccesful appeals in state court based on the claim that his 
counsel had failed to adequately investigate his mental health. A federal 
district court also rejected Thompson's petition based on that claim. 
However, Thompson's habeas counsel had failed to include in the record the 
deposition and report of a psychologist who argued Thompson had suffered 
from serious mental illness. The counsel included the documents when 
Thompson appealed to the Sixth Circuit, which nevertheless dismissed 
Thompson's claim. Thompson then petitioned the U.S. Supreme Court, and the 
Sixth Circuit stayed its mandate until the Court decided whether to hear 
the case. The Court denied the petition, but the Sixth Circuit stayed its 
mandate again, pending the Supreme Court's decision on Thompson's petition 
for rehearing, which the Court denied. The Sixth Circuit still did not 
issue its mandate. Five months later, Tennessee had set Thompson's 
execution date. The Sixth Circuit suddenly issued an amended opinion on 
Thompson's habeas petition, overturning the district court's dismissal of 
his ineffective counsel claim and ordering hearings based on that claim. 
The Sixth Circuit included in the appeal record the initially ommitted 
psychologist deposition. The circuit court argued its authority to issue 
an amended opinion five months after the Supreme Court denied Thompson's 
petition was based on its inherent power to reconsider an opinion before 
issuance of the the mandate."

See also:

Constitutional Relevance of Foreign Court Decisions (Scalia/Breyer)

Video recording via C-SPAN (January 13, 2005)
rtsp://video.c-span.org/archive/sc/sc011305_scalia.rm

Transcript
http://domino.american.edu/AU/media/mediarel.nsf/1D265343BDC2189785256B810071F238/1F2F7DC4757FD01E85256F890068E6E0?OpenDocument
http://www.joink.com/homes/users/Ninoville/au1-13-05.asp

Justice Scalia on the Net
http://www.youtube.com/watch?v=_byBa5uK_I8
http://www.youtube.com/watch?v=fdYgUs81pEo

[log in to unmask]: Use this address for postings and replies - Email text body 'SIGNOFF int-law' to: [log in to unmask]
**DISCLAIMER: The opinions expressed on this list are those of the authors and do not necessarily reflect the opinions of CIESIN, its staff, or CIESIN's sponsors.

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