The Impact of, and Resistance to, the Use of Foreign Law on Juvenile Punishment in the United States
This chapter examines the impact of and resistance to the use of foreign law. It traces the US Supreme Court's juvenile punishment cases, examines the backlash against Justice Kennedy's use of foreign law, and discusses why many view his use of foreign law in juvenile punishment cases to conflict with principles of American democracy. Eighth Amendment cases have become one flashpoint for the recent conflict among the judiciary, Congress, and the public over the propriety of using foreign law in constitutional analysis. As to American consensus, although fewer than half of the states banned the juvenile death penalty, and only four had banned it since Stanford, Justice Kennedy nonetheless saw a slow, but growing, movement among states to abolish the juvenile death penalty. The backlash against foreign law puzzled many commentators, who observed that it is the critical reaction to the use of foreign law that is new, not its actual use.