On comparativism

From Atlantic Online (but behind a subscription requirement unfortunately), an article on a current debate in US law:

In 1999 one of the scores of death-row appeals that land at the Supreme Court each year caught the eye of Justice Stephen Breyer. Thomas Knight, who had been sentenced to death by the State of Florida in 1975 for killing a married couple, argued in the appeal that he had been living in anguished anticipation of execution for so long that his sentence had become a form of cruel and unusual punishment. Knight's case was joined with that of Carey Moore, who'd been on Nebraska's death row for nineteen years for killing two cabdrivers.

No court in the United States had ever lifted a death sentence for this reason. But Breyer had a hunch that courts in other countries might have done so, and he asked his clerks to investigate. He had issued a similar directive earlier that term, when he wanted to know more about other countries' approaches to campaign-finance law. "I remember his exact words," says one of Breyer's clerks from that year. "He said, 'We're not the only court in the world. See what they have to say.'" Breyer has come to refer to proponents of this approach - namely, judges who use international legal precedents for context as they interpret the U.S. Constitution - as "comparativists."
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Breyer feels strongly that the United States can learn from... developments abroad. "Really, it isn't true that England is the moon, nor is India," he said in a debate with Justice Antonin Scalia last January at American University, in Washington, D.C. Judges in those countries "have problems... similar to our own."

Breyer is no longer a lonely crusader: comparativism is startlingly in the ascendant in the U.S. Supreme Court, among both the relatively liberal justices and the centrist conservatives. Foreign precedents were at the heart of the Court's recent decisions to strike down sodomy laws (Lawrence v. Texas, 2003) and to ban the execution of juveniles (Roper v. Simmons, 2005). Both opinions were written by Justice Anthony Kennedy, who often votes with the Court's conservative bloc...

... Breyer argues that comparativism has a modest aim - to "cast an empirical light" that will reveal new solutions to shared legal problems. He and his allies have pointed out that looking abroad for precedents is not new for the Court: in cases from the 1950s through the 1980s (and also during the 1890s) majorities took account of foreign practices in deciding whether a punishment was permissible.
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The strongest argument against comparativism is a matter of practice, not principle. Those who draw on foreign laws and precedents tend to use them selectively, when it suits their purposes. This makes their opponents cry foul. "We are one of only six countries in the world that allows abortion on demand at any time prior to viability," Scalia said to Breyer in their American University debate. "Should we change that because other countries feel differently?"

If comparativism continues to gather momentum, as seems likely, Scalia's question may be taken up in earnest. "The first opposition strategy is to argue that these materials are illegitimate," says Mark Tushnet, a professor of law at Georgetown University. "But if you lose that battle, then you start citing them yourself." A victory for comparativism could have conservative judges citing international precedents that support their own arguments - laws, say, that restrict abortion in Germany and Ireland, or limit free speech in Canada. That would be the foreign-law version of "If you can't beat 'em, join 'em."

I have no expertise here, but I can't see a decisive argument against it when it is couched in terms of '"cast[ing] an empirical light" that will reveal new solutions to shared legal problems'. (Thanks: IT.)