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Comparative Reasoning in European Supreme Courts$
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Michal Bobek

Print publication date: 2013

Print ISBN-13: 9780199680382

Published to Oxford Scholarship Online: September 2013

DOI: 10.1093/acprof:oso/9780199680382.001.0001

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The Deviations: Political Over- and Non-comparisons

The Deviations: Political Over- and Non-comparisons

Chapter:
(p.252) 14 The Deviations: Political Over- and Non-comparisons
Source:
Comparative Reasoning in European Supreme Courts
Author(s):

Michal Bobek

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199680382.003.0015

The chapter seeks to conceptualize the deviations from the normal tolerant openness towards comparative inspiration established legal systems generally demonstrate. The first part of the chapter describes such deviations and their origins. In the second part, a recent instance of over-use of comparative inspiration is examined: the role comparative arguments and above all comparative rhetoric played in legal transitions in Central Europe. In the third part, examples of non-uses caused by political system closures are given. In particular, the currently extensively debated uneasy position of the use of foreign law in the US courts is discussed, in particular with respect to one question: why is it that the debates on the subject of the use of foreign law in the US courts have become so heated and, in a way, pathological?

Keywords:   over-use of comparative law, non-use, over-use, legal transition, purposive reasoning, constitutional courts, Germany, United States, US Supreme Court, disjunction of legal scholarship

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