Ursula Bentele Copyright (c) 2009 All rights reserved. http://works.bepress.com/ursula_bentele Recent documents in Ursula Bentele en-us Sun, 31 May 2009 12:52:06 PDT 3600 Mining for Gold: The Constitutional Court of South Africa's Experience with Comparative Constitutional Law http://works.bepress.com/ursula_bentele/15 http://works.bepress.com/ursula_bentele/15 Tue, 19 Aug 2008 12:51:03 PDT MINING FOR GOLD: THE CONSTITUTIONAL COURT OF SOUTH AFRICA'S EXPERIENCE WITH COMPARATIVE CONSTITUTIONAL LAWUrsula BenteleAbstractDespite a long history of referring to foreign law in its opinions, the Supreme Court's recent citations to such sources have caused heated controversy. Critics warn of threats to sovereignty as well as serious flaws in the way judges use outside authority. Largely missing from this debate is any probing examination of the actual practice of engaging with foreign authorities. This article attempts to fill the empirical void by analyzing closely one court that has used foreign law extensively: the Constitutional Court of South Africa. The author conducted interviews with eight former and current justices who discussed both the value gained from the practice of engaging with foreign law and their ways of addressing the concerns expressed by American critics. Whether identifying universal norms, engaging in a dialogue to help clarify an issue, or gaining insight into comparable constitutional provisions, these justices see clear benefits from exploring the opinions of constitutional courts in other parts of the world. Yet they approach such outside sources with great care, fully aware of the potential hazards of transplanting foreign legal concepts and conscientiously avoiding selective citation only to favorable outside authorities. Detailed analysis is provided of several cases containing significant references to foreign law, along with commentary from the justices on how particular opinions were enriched by examination of other courts' treatment of the same issues. These findings bear on the current debate and, in a world where many other high courts engage in constitutional comparativism, suggest that the United States Supreme Court would do well by joining the conversation. Ursula Bentele Comparative Law Constitutional Law Courts Judges Jurisprudence "The Death Penalty in Georgia: Still Arbitrary" http://works.bepress.com/ursula_bentele/14 http://works.bepress.com/ursula_bentele/14 Tue, 16 Oct 2007 09:02:05 PDT Ursula Bentele "Chief Justice Rehnquist, the Eighth Amendment, and the Role of Precedent" http://works.bepress.com/ursula_bentele/13 http://works.bepress.com/ursula_bentele/13 Tue, 16 Oct 2007 08:57:36 PDT Ursula Bentele "The False Promise of Discretionary Imposition of the Death Penalty in South Africa" http://works.bepress.com/ursula_bentele/12 http://works.bepress.com/ursula_bentele/12 Tue, 16 Oct 2007 08:51:41 PDT Ursula Bentele "Race and Capital Punishment in the United States and South Africa" http://works.bepress.com/ursula_bentele/11 http://works.bepress.com/ursula_bentele/11 Tue, 16 Oct 2007 08:50:28 PDT Ursula Bentele "Introduction [The Death Penalty in New York: Past, Present ... Future? The Edward V. Sparer Public Interest Law Forum]" http://works.bepress.com/ursula_bentele/10 http://works.bepress.com/ursula_bentele/10 Tue, 16 Oct 2007 08:48:44 PDT Ursula Bentele "Bill of Rights Redivivus: The Eighth Amendment Should be Interpreted to Stop Capital Punishment" http://works.bepress.com/ursula_bentele/9 http://works.bepress.com/ursula_bentele/9 Tue, 16 Oct 2007 08:43:49 PDT Ursula Bentele "Back to an International Perspective on the Death Penalty as a Cruel Punishment: The Example of South Africa" http://works.bepress.com/ursula_bentele/8 http://works.bepress.com/ursula_bentele/8 Tue, 16 Oct 2007 08:38:42 PDT Ursula Bentele "How Jurors Decide on Death: Guilt is Overwhelming; Aggravation Requires Death; and Mitigation is No Excuse [Symposium: The Jury in the 21st Century: An Interdisciplinary Conference]" http://works.bepress.com/ursula_bentele/7 http://works.bepress.com/ursula_bentele/7 Tue, 16 Oct 2007 08:36:39 PDT Ursula Bentele "Does the Death Penalty, by Risking Execution of the Innocent, Violate Substantive Due Process?" http://works.bepress.com/ursula_bentele/6 http://works.bepress.com/ursula_bentele/6 Tue, 16 Oct 2007 08:04:16 PDT Ursula Bentele Death Penalty