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Monday, September 26, 2005


Peter Friedman

The case that started this whole controversy, however, did not involve selective citation to foreign law that only supported the result the author was advocating. Kennedy was recognizing that there is no other western democracy that executes juveniles. Surely that fact might persuade an audience executing juveniles is "cruel and unusual" punishment. In short, the problem isn't with citation to foreign law. Your complaint is with the persuasiveness of any particular citation. So don't tell judges and lawyers they shouldn't cite to foreign law. Rather, if you find the citation unpersuasive (because, for example, it is selective), point it out. Law is rhetoric and argumentation, not science. If something is persuasive, it's persuasive.

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