Judicial comparativism and judicial diplomacy.

Author:Law, David S.
Position:III. The Koren Constitutional Court through V. The Hing Kong Court of Final Appeal, p. 962-997

    1. Level of Foreign Law Citation

      It is relatively rare for the KCC to actually cite foreign law in its opinions. Sources inside the KCC estimated that foreign law, in the form of judicial precedent or otherwise, is explicitly cited in no more than 5 to 10% of decisions. (121)

    2. Level of Foreign Law Usage

      Although the KCC is reluctant to cite foreign law, it has embraced the use of foreign law. The degree to which the KCC has routinized and institutionalized foreign legal research is breathtaking. Its mechanisms for researching and analyzing foreign law range from specialized researchers hired specifically for their foreign legal credentials, to the establishment of a freestanding research institute that publishes comparative constitutional scholarship and monitors the work of constitutional courts around the world.

      Sources inside the KCC gave estimates of how frequently foreign legal research is conducted that ranged from 60% of cases to "always." (122) The decision to research foreign law in a given case is usually made by the Constitutional Research Officer (CRO) responsible for preparing the bench memorandum. As discussed below, CROs are roughly equivalent to law clerks but are significantly more experienced and much more likely to possess foreign legal training than their American counterparts. On rare occasions--perhaps 5 to 10% of the time--foreign legal research will be performed at the specific request of a justice. (123)

    3. Jurisdictions Considered

      The jurisdictions most often considered by the KCC are Germany, the United States, and Japan, in roughly that order. Interest in the case law of the ECtHR is growing, and research on French law is also conducted from time to time. The KCC's attention to German and Japanese law is partly a legacy of the imposition of Japanese law during the colonial period. Because Japanese law at the time was inspired by German law, Korean law borrows heavily but indirectly from German law as well. Research on German law is conducted at least half of the time. (124)

      American law receives attention in approximately 20% of cases and is especially likely to be considered in freedom of expression and habeas corpus cases. The lack of social and economic rights in the U.S. Constitution was identified by several sources as a factor that limits the relevance of American jurisprudence to the KCC. However, the use of American law is on the rise. Korean emphasis on the acquisition of English-language skills and interest in professional opportunities for American-trained lawyers have helped to tip the balance of foreign legal training away from German law toward American law. It is widely felt among younger Koreans, including law students, that English opens a wider range of professional opportunities than other languages such as German.

      Japanese law is considered in a small, and declining, proportion of cases, in the neighborhood of 15%. Cases involving older statutes that date back to Japan's occupation of Korea continue to call for Japanese legal research. However, Japan was described as offering "little constitutional jurisprudence" and "little to learn" because the JSC is "too conservative" and "never strikes anything down." (125) Through the mid-1980s, the training curriculum for Korean judges included a Japanese language requirement. It is perhaps both a cause and a symptom of declining judicial interest in Japanese law that the requirement was abandoned in the late 1980s.

      Like the JSC and TCC, the KCC appears to pay relatively little attention to courts from common law jurisdictions other than the U.S. Supreme Court.

      Neither the Canadian Supreme Court nor the South African Constitutional Court was identified as a major influence or regular point of comparison. A recently retired justice opined that the KCC is "expanding its repertoire, slowly" and cited as evidence the deliberate recruitment of researchers to specialize in the European Court of Human Rights. (126) However, when asked about the actual impact of the ECtHR, a veteran court official indicated that its jurisprudence is considered "from time to time," but "not that often." (127)

      The holdings in the KCC's library offer a rough but quantifiable proxy for the court's interest in specific jurisdictions and in foreign law more generally. Of the roughly 125,000 volumes held by the library, 55% are of foreign origin. (128) The library's constitutional law collection is skewed even more heavily in a comparative direction. German volumes make up 28% of the collection, while Korean volumes make up only 25.5%. (129) English-speaking jurisdictions (including the United States, the United Kingdom, and the rest of the Commonwealth) together contribute 18.6% of the total, while Japan by itself accounts for 16%. Leading the remainder are France with 5% and Austria with 1.3%.

    4. Level of Foreign Law Expertise

      The KCC's means of learning about foreign legal systems are remarkably varied and extensive. Its repositories of foreign legal expertise include: (1) the justices who have studied overseas; (2) the permanent law clerks who possess foreign legal expertise; (3) the law clerks hired as specialists in foreign law; (4) the law professors who work for the court on a part-time basis; (5) experts hired by the parties; and (6) the newly established Constitutional Research Institute. Each will be discussed in turn.

      1. The Justices Themselves

        With respect to the proportion of its membership that has studied law abroad, the KCC falls between the JSC and the TCC. Four of the nine justices have studied law overseas: three hold LL.M. degrees from the United States (two from the University of Michigan, one from Southern Methodist University), and one studied criminal law at the Max Planck Institute in Germany. (130) The members of the KCC have all traditionally been recruited from the career judiciary or the prosecutor's office; no law professor has ever been appointed to the KCC.

        The level of foreign training possessed by the justices is likely to grow over time as a result of the Korean judiciary's expanding study-abroad program. (131) At present, the Korean judiciary provides funding for roughly sixty judges to study overseas for one year at government expense. (132) Judges who apply successfully for this program are awarded full tuition and a stipend that is slightly lower than their usual judicial salary. (133) Another forty or so judges are given a lower level of financial support to study abroad for a shorter period of six months as visiting scholars. (134) Judges are ordinarily eligible to apply for the study-abroad program from their seventh through tenth years of service. Given that there are roughly two hundred judges in any given cohort, the overall proportion of Korean judges who study abroad at some point approaches, if not exceeds, one-half. (135) Moreover, the Korean Supreme Court has recently announced a dramatic expansion of the program: all judges appointed after (2003) have now been promised the opportunity to study abroad, albeit as visiting scholars rather than degree candidates. (136)

        The official application for overseas study lists as possible destinations the United States, the United Kingdom, Canada, Germany, France, Switzerland, Japan, China, Spain, Russia, Australia, and Italy, but the list is not exclusive, and other countries may be requested "with enough evidence of necessity." Judges express their preferences for particular institutions from a list approved by the Korean Supreme Court, which allocates applicants among the various institutions. The judges themselves are then responsible for gaining admission to the institutions to which they are assigned. As a practical matter, a major obstacle to a successful application is demonstration of the requisite language skills: some judges attend cram school on weekends in order to muster the necessary TOEFL score.

        Notwithstanding the historical importance of German and Japanese law, roughly two-thirds of Korean judges opt for English-speaking jurisdictions, with a particular bias in favor of the United States. For the 2013-2014 academic year, out of a total of sixty-five judges receiving full funding for their overseas studies, forty-three selected English-speaking countries, of whom the overwhelming majority (thirty-five) chose the United States (thirteen as LL.M. students and twenty-two more as visiting scholars). (137) The United Kingdom has three, Canada and Australia each have two, and one opted for the Netherlands (which the Korean judiciary classifies as an English-speaking jurisdiction for purposes of study abroad). (138) By contrast, eight judges went to German-speaking countries (six to Germany itself, one to Austria, and one to Switzerland). (139) Only two chose Japan, which is now tied with China and is less popular than either France (five judges) or Spain (three judges). (140)

        Both the judicial preference for English-speaking countries, and the level of familiarity in Korea with American law more generally, are likely to grow in the future. A number of Korean judges attributed the preference for English-speaking countries to the heavy premium that Korean society places on the acquisition of English-language skills. Judges view time spent in the United States as an opportunity for their children to be exposed to the American educational system and to learn English. Law students in particular value English for the access that it gives them to the American legal market as well as elite Korean law firms, which have recruited large numbers of foreign-qualified lawyers. (141) These trends are both reflected and reinforced by government regulation of Korean legal education. The law school accreditation committee established by the Korean ministry of education has adopted guidelines that call upon Korean law schools to offer at least eight courses in foreign languages. (142) Although some law schools offer courses...

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