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44 Fam. Ct. Rev. 1 (2006)

handle is hein.journals/fmlcr44 and id is 1 raw text is: 


                                  JANUARY 2006

   As is traditional, we begin the New Year with a new volume  of Family Court Review-
its forty-fourth. The first issue in the new volume blends cutting-edge and traditional topics,
a combination  that I hope readers will find intellectually and professionally invigorating.

                         LEARNING FROM EACH OTHER

   Before describing what  this issue contains, I want to begin with a general observation
about the importance  of international dialogue and communication  about  how  court sys-
tems  and the rule of law can best help families and children. At present, a debate rages
among  jurists in the United States about whether and how much we should consult the laws
of other nations in shaping our own.
   That debate was  simulated by the Supreme   Court's opinion in Roper v. Simmons,' the
case that declared the death penalty for juveniles was unconstitutional cruel and unusual
punishment.  Justice Anthony B. Kennedy's opinion  surveyed the law of other countries, a
survey that supported the conclusion but has proved to be controversial in legal circles. In
dissent, Justice Antonin Scalia argued that the basic premise of the Court's argument-that
American  law  should conform  to the laws of the rest of the world-ought  to be rejected
out of hand . . . Either America's principles are its own, or they follow the world; one cannot
have it both ways.2 Chief Justice designate (at the time of this writing) John Roberts stated
during his confirmation hearings that he supports Justice Scalia's view.
   In Roper, in reply to Justice Scalia, Justice Kennedy wrote:

   The  opinion of the world community, while not controlling our outcome, does provide
   respected and significant confirmation for our own conclusions.

   Over time, from one generation to the next, the Constitution has come to earn the high respect and
   even, as Madison dared to hope, the veneration of the American people. The document sets
   forth, and rests upon, innovative principles original to the American experience, such as
   federalism; a proven balance in political mechanisms through separation of powers; specific
   guarantees for the accused in criminal cases; and broad provisions to secure individual freedom
   and preserve human  dignity These doctrines and guarantees are central to the American
   experience and remain essential to our present-day self-definition and national identity. Not the
   least of the reasons we honor the Constitution, then, is because we know it to be our own. It
   does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that
   the express affirmation of certain fundamental rights by other nations and peoples simply
   underscores the centrality of those same rights within our own heritage of freedom.3

   Whether  and to what degree American  judges should consult foreign law in formulating
their views is thus a controversial and complex topic that cannot be treated with the full

FAMILY COURT REVIEW, Vol. 44 No. 1, January 2006 1-4
c 2006 Association of Family and Conciliation Courts

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