Judicial comparativism and judicial diplomacy.

AuthorLaw, David S.
PositionIntroduction: The Divide Between American and Global Constitutionalism through II. The Japanese Supreme Court, p. 927-962

By global standards, the U.S. Supreme Court is unusual in a number of respects, but one of its most distinctive characteristics is its reluctance to engage in comparative constitutional analysis. Much has been said on the normative question of whether and in what ways the Court ought to make use of foreign constitutional jurisprudence. Rarely, however, do scholars broach the underlying empirical question of why some courts make greater use of foreign law than others.

To identify the causes of comparativism, a behind-the-scenes investigation was conducted of four leading courts in East Asia: the Japanese Supreme Court, the Korean Constitutional Court, the Taiwanese Constitutional Court, and the Hong Kong Court of Final Appeal. The results of this investigation highlight the crucial role of institutional and resource constraints in shaping judicial behavior but also pose an unexpected challenge to traditional conceptions of the role and function of constitutional courts.

Evidence from interviews conducted with numerous justices, clerks, and senior administrators suggests that a combination of mutually reinforcing factors creates the conditions necessary for comparativism to thrive. The first factor is institutional capacity. A court that lacks institutional mechanisms for learning about foreign law, such as the recruitment of law clerks with foreign legal expertise or the use of researchers who specialize in foreign law, is unlikely to make more than sporadic use of foreign law. The second factor is legal education. Even the most elaborate of institutional mechanisms for facilitating comparativism is unlikely to be effective unless it is backed by a system of legal education that produces an adequate supply of lawyers with both an aptitude and appetite for comparativism.

Investigation of the reasons for which courts engage in comparativism also reveals a hidden underlying phenomenon of judicial diplomacy. Unlike other judicial practices such as textualism or originalism, comparativism is not merely a means by which judges perform legal and adjudicative functions; it can also be a form of diplomatic activity. When constitutional courts demonstrate mastery of foreign law or host foreign judges, their goals may not consist exclusively, or even primarily, of writing stronger opinions or winning over domestic audiences. They may also be competing with one another for international influence or pursuing foreign policy objectives, such as promotion of the rule of law and judicial independence in other countries. The concept of judicial diplomacy helps to explain why constitutional courts engage in a number of practices that are only tenuously related to the act of adjudication. Although the U.S. Supreme Court rarely practices constitutional comparativism, it is an active practitioner of judicial diplomacy in other forms.

INTRODUCTION: THE DIVIDE BETWEEN AMERICAN AND GLOBAL CONSTITUTIONALISM I. THE CHALLENGES OF MEASURING COMPARATIVISM: METHODOLOGY AND DATA COLLECTION A. Case Selection: Most-Similar Versus Most-Different Cases B. Data Collection: A Structured-Focused Approach II. THE JAPANESE SUPREME COURT A. Level of Foreign Law Citation B. Level of Foreign Law Usage C. Jurisdictions Considered D. Level of Foreign Law Expertise E. Level of Interaction with Foreign Courts III. THE KOREAN CONSTITUTIONAL COURT A. Level of Foreign Law Citation B. Level of Foreign Law Usage C. Jurisdictions Considered D. Level of Foreign Law Expertise 1. The Justices Themselves 2. Constitutional Research Officers (CROs) 3. Constitutional Researchers (CRs) 4. Academic Advisers 5. Experts Hired by the Parties 6. The Constitutional Research Institute E. Level of Interaction with Foreign Courts IV. THE TAIWANESE CONSTITUTIONAL COURT A. Level of Foreign Law Citation B. Level of Foreign Law Usage C. Jurisdictions Considered D. Level of Foreign Law Expertise E. Level of Interaction with Foreign Courts V. THE HONG KONG COURT OF FINAL APPEAL A. Level of Foreign Law Citation B. Level of Foreign Law Usage.... C. Jurisdictions Considered D. Level of Foreign Law Expertise 1. The Entrenched Legacy of British Rule 2. Participation of Overseas Judges and Lawyers 3. The Foreign Education of Lawyers and Judges 4. Research Assistance E. Level of Interaction with Foreign Courts VI. CONVENTIONAL EXPLANATIONS FOR COMPARATIVISM VII. DIPLOMATIC EXPLANATIONS FOR COMPARATIVISM VIII. INSTITUTIONAL EXPLANATIONS FOR COMPARATIVISM A. The Role of Institutional Design B. The Role of Legal Education CONCLUSION: JUDICIAL DIPLOMACY AND JURISPRUDENTIAL NETWORKS INTRODUCTION: THE DIVIDE BETWEEN AMERICAN AND GLOBAL CONSTITUTIONALISM

By global standards, American constitutionalism is unusual--or, as some prefer to say, exceptional (1)--in many respects. Much of what makes it so atypical can be traced directly to the U.S. Constitution itself. The Constitution is very old. It is also very rarely amended. The average constitution has a 38% chance of being revised in any given year and is replaced every nineteen years. (2) The U.S. Constitution, by contrast, is the oldest surviving constitution in the world. (3) It has lasted twelve times longer than the average constitution, and it has not been amended in over twenty years. (4)

Whether one considers these characteristics of longevity and stability praiseworthy--and some do not (5)--they have as a purely empirical matter rendered the Constitution increasingly out of sync with the global mainstream. Since World War II, constitutional drafting around

the world has become characterized by the widespread adoption of a core set of generic constitutional rights that extend beyond the negative civil and political liberties found in the Bill of Rights. (6) The U.S. Constitution, a relic of the late eighteenth century, has not partaken of these trends. Instead, it omits a significant number of provisions that have become highly popular, while including others that have become highly atypical. (7)

Other odd features of American constitutionalism are attributable not to the Constitution, but rather to the Supreme Court. Interpretive and argumentative approaches popular in the United States barely register in other countries, and vice versa. For example, originalism has become a fixture of judicial, academic, and even popular debate in the United States (8) but, as a former Canadian Supreme Court justice has observed, it is "simply not the focus, or even a topic, of debate elsewhere." (9)

As distinctive as the presence of originalism, however, is the absence of comparativism. (10) It is difficult to identify a national high court that pays less attention to foreign constitutional jurisprudence than the U.S. Supreme Court. (11) Indeed, the Court's reluctance to engage foreign courts in a "global judicial dialogue" (12) on matters of common concern has itself become an object of criticism from both foreign jurists (13) and members of the Court itself. (14) Although references to foreign law in a succession of high-profile constitutional decisions toward the tail end of the Rehnquist Court attracted tremendous attention, (15) the actual number of constitutional cases in which the Court cites foreign law remains very low in absolute terms and may even be declining. From 1986 through 2010, less than 0.3% of opinions in constitutional cases--majority, concurring, and dissenting alike--cited foreign case law. (16) Moreover, all of the citations that did occur date back to the Rehnquist Court; none occurred during the first six years of the Roberts Court. (17) Nor is there reason to suspect that the U.S. Supreme Court routinely consults foreign law in the course of its deliberations without revealing that it has done so. (18)

Vast quantities of ink have been spilled over the normative question of whether, and in what ways, courts ought to engage with foreign law. (19)

Rarely, however, have scholars writing in this vein broached the empirical question of why some courts make greater use of foreign law than others. (20) The question is not as easily answered as it might appear. Two of the explanations that come most readily to mind--namely, isolationism on the part of judges, and political controversy over the use of foreign law--prove inadequate, especially when courts outside the United States are considered.

  1. The judicial isolationism hypothesis.--It is tempting to think that judicial reluctance to use foreign law might simply reflect isolationism or parochialism on the part of judges, but there are several problems with this explanation. First, it is somewhat circular. To say that some judges refuse to engage with foreign law because they are isolationist is akin to saying that some people tend to vote Republican because they are Republicans. Labeling behavior is not the same as explaining behavior. Even if there are judges who can be described in some sense as isolationist, that merely begs the question of why they hold such views while others do not.

    Second, the extent to which judges engage with the rest of the world does not appear to play a crucial role in determining whether they will practice comparativism. Foreign interaction is neither necessary nor sufficient for comparativism to occur. On the one hand, comparativism can be a routine occurrence even if foreign interaction is restricted, as shown by the example of the Taiwanese Constitutional Court. (21) On the other hand, frequent interaction with foreign courts and foreign judges does not guarantee a thriving practice of comparativism. For evidence of this fact, we need look no further than the U.S. Supreme Court, which is well connected to foreign courts but nevertheless shuns comparativism. Across the ideological spectrum, the Justices are in high demand internationally as both guests and hosts, and they do not turn their backs on the rest of the world. Indeed, the Court hosts overseas visitors so often that it has developed the equivalent of a diplomatic office...

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