Brown abroad: an empirical analysis of foreign judicial citation and the metaphor of cosmopolitan conversation.

• Author: Lyke, Sheldon Bernard

ABSTRACT

This Article generates a data set (twelve courts and thirty-two decisions) of foreign judicial citations to the landmark U.S. Supreme Court decision in Brown v. Board of Education. The purpose of this Article is to learn what happens when a case is deterritorialized and reconstituted in a different national scenario, and to conceptualize how courts around the world use foreign authority. My analysis reveals that few foreign courts used Brown in decisions involving education or race and ethnicity. Foreign courts used the case as a form of factual evidence, as a guide in understanding the proper role of a court with respect to decision making, and as a source of substantive law in discussions on equal protection. Although central to comparative law, the legal transplant metaphor does not adequately explain the transnational use of Brown. By incorporating sociological theories of diffusion and innovation, I attempt to reconcile some of the flaws of the transplant metaphor and argue that conceptualizing judiciaries' use of foreign law as a cosmopolitan conversation is more appropriate. Cosmopolitan conversation has led to forms of legal learning and innovation when courts have cited, interpreted, and infused their own meaning into the Brown decision.

TABLE OF CONTENTS I. INTRODUCTION II. METHODS A. Sample Generation B. Data Collection and Analysis III. RESULTS A. Overall Trends B. Categorizing the Use of Brown 1. Brown as a Form of Factual Evidence a. The Importance of Education b. Existence of Stigma c. Context and History 2. Brown as a Guide to Understanding the Role of the Judiciary a. Stare Decisis b. Political Questions c. Remedy and Relief 3. Brown as a Source of Substantive Law: Equal Protection IV. DISCUSSION: FROM LEGAL TRANSPLANT TO COSMOPOLITAN INNOVATION V. CONCLUSION AND IMPLICATIONS FOR FUTURE RESEARCH I. INTRODUCTION

Foreign laws have significant influences on the development and interpretation of domestic laws. As global cultural flows have increased, it has become difficult to find purely territorialized law devoid of foreign national influences. It is not surprising to see the Americanization of Japanese laws, (1) international law influencing the female genital cutting policies of many African nations, (2) or the Supreme Court of the United States referring to world opinion and the practices of foreign nations in criminal cases. (3) Laws have become deterritorialized. (4)

The diffusion-based legal transplant theory is often used as a framework in attempts to understand how laws exert influence beyond their borders. (5) The theory states that the law of one nation has the ability to spread to and influence the legal system of another country or countries. In a comparative law context, legal transplants are successful when the transplanted laws have the same effect in the recipient country as in the country of origin, thereby leading to convergence.

The legal transplant metaphor is prominent in understandings of the Americanization of legal systems around the world. A wealth of commentaries discuss the strong, worldwide influence of American laws. (6) For example, Anthony Lester argues that we can see the strength of American law with respect to transjudicial communication, and that the U.S. Supreme Court is in a one-way "overseas trade" with the courts of other nations. (7) For Lester, this means that many national courts consider the rulings of the United States with respect to issues on liberty, but that the U.S. Supreme Court does not refer to the judgments of the courts that refer to it. Lester writes:

Currently, there is a vigorous overseas trade in the [United States'] Bill of Rights, in international and constitutional litigation involving norms derived from American constitutional law. When life or liberty is at stake, the landmark judgments of the Supreme Court of the United States, giving fresh meaning to the principles of the Bill of Rights, are studied with as much attention in New Delhi or Strasbourg as they are in Washington, D.C., or the State of Washington, or Springfield, Illinois. (8) Some scholars argue that this strong influence is resulting in an Americanization of foreign legal systems at the national and international levels, where these systems emulate and mimic U.S. law and legal practices. (9) This understanding sees the transplant circulation of law as a process that inevitably leads to homogenization.

Other scholars caution against the Americanization thesis. They note that while the American legal system has a strong influence, we are not witnessing the recreation of U.S. legal practice in foreign jurisdictions, but actually the creation of more heterogeneous systems. (10) These scholars argue that legal transplant circulation does not necessarily lead to the replication of the laws of the source country. (12) They suggest that the metaphor of the unchanging legal transplant is problematic because it assumes that law serves the same function when removed from one legal body and inserted into another. (12) While the legal transplant concept helps explain how development can occur in the country where law is received, it does not acknowledge the change that can occur to the legal idea as it is transferred from the country of origin. David Westbrook discusses this notion of legal heterogeneity, stating:

Locality still matters.... Indeed, culture still matters. More interestingly still, while we observe homogenization these days we also observe the emergence of new and important differences among people, and the emergence of such differences runs counter to anxieties, now cliched, about homogenization. (13) Westbrook highlights a classic question of whether globalization is a process that leads to greater homogeneity or one that brings about greater difference and hybridity. But perhaps this is the wrong question to ask, and the disparate results that we see in observations of globalization may reveal the limitations in how legal scholars and social scientists presently conceptualize global practices. Westbrook correctly urges scholars to resolve the contradictions we observe in globalization by changing our way of thinking. (14)

In this Article, I caution against the thesis that the circulation of law always leads to homogenization. In fact, the movement of law across borders is likely to produce heterogeneity. To support this view, I examine foreign judiciaries' citation and use of the landmark U.S. Supreme Court case, Brown v. Board of Education. (15) Decided on May 17, 1954, Brown held that state and local laws promoting racial segregation in public schools were unconstitutional. (16) The Brown decision effectively ended the doctrine of "separate but equal" articulated in Plessy v. Ferguson. (17) While there is debate about whether Brown was an engine for social change in the United States, (18) the influence of Brown around the world is undeniable. Legal historian Mary Dudziak researched the landmark case's role in an international context and argues that Brown was a case intimately linked to the Cold War. (19) She states that Brown aided the U.S. image abroad, because its formal legal change was seen as a blow to Communism, as people around the world could see that the United States was fair and that democracy as a political system was just. (20) Dudziak's work focuses largely on the reception of Brown in the international press and to the more political branches of foreign government. She does not examine how judicial branches of foreign government received the decision.

Richard Goldstone and Brian Ray agree that Brown was a domestic case decided in an international context, but argue that the case also has a profound international influence. (21) After a limited search, they found seven foreign case law citations to Brown. Their analysis of these foreign citations revealed that there are three areas linked directly to the Brown legacy: (1) the elimination of racial segregation, (2) the importance of education in a democratic society, and (3) the development of innovative judicial enforcement powers. (22) Goldstone and Ray do not articulate a sampling method for selecting the cases that cited Brown. As a result, their sample is comprised almost entirely of cases from Canada and South Africa, and therefore is not representative of the vast majority of foreign court citations to Brown. In addition, Goldstone and Ray do not offer a systematic research method or logic describing how they analyzed the cases in order to discern Brown's effect.

The goal of this project is two-fold. First, I assess whether the legal transplant metaphor is accurate in explaining the circulation of law. I test this by examining the circulation of Brown amongst foreign courts. By using transjudicial communications as my unit of analysis, I can comment not only the circulation of law between foreign legal systems generally, but I can also provide empirical data that may offer insight and clarify questions in the normative debate on the appropriateness of the judicial citation to foreign authority. (23)

My second goal is to examine the international influence of Brown by using social science research methods to gather a representative sample of foreign citations to Brown, and then analyze those cases using systematic qualitative research. I seek to understand how Brown is used as a symbol and is interpreted and reinterpreted by foreign courts. Generally, I am interested in learning what happens to a case once it is deterritorialized and taken out of the context of the nation-state where it was originally decided. Specifically, I want to understand how foreign judiciaries consume Brown and make meaning of the decision.

Court cases are interesting things to use to study deterritorialization because, in a common law system of precedent, they are symbols designed for courts to apply to new factual contexts. (24) Court cases serve as precedent, and are expected to be used...