The Limits of Global Judicial Dialogue

• Publication year: 2021

THE LIMITS OF GLOBAL JUDICIAL DIALOGUE

David S. Law(fn*) and Wen-Chen Chang(fn**)

Abstract: The notion that "global judicial dialogue" is contributing to the globalization of constitutional law has attracted considerable attention. Various scholars have characterized the citation of foreign law by constitutional courts as a form of "dialogue" that both reflects and fosters the emergence of a common global enterprise of constitutional adjudication. It has also been claimed that increasing direct interaction between judges, face-to-face or otherwise, fuels the growth of a global constitutional jurisprudence.

This Article challenges these claims on empirical grounds and offers an alternative account of the actual reasons for which constitutional courts engage in comparative analysis. First, it is both conceptually and factually inaccurate to characterize the manner in which constitutional courts cite and analyze foreign jurisprudence as a form of "dialogue." As a conceptual matter, constitutional courts do not cite one another for the purpose of communicating with another, while as an empirical matter, there is little evidence to suggest that one-sided citation of a handful of highly prestigious courts has given way to genuine two-way dialogue. Second, judicial interaction is neither a necessary nor a sufficient cause of constitutional globalization. Rather, the effect of such interaction on the extent to which judges engage in comparativism is dwarfed by institutional and structural variables that lie largely beyond judicial control.

The relative unimportance of judicial interaction is illustrated by a comparative case study of the Constitutional Court of the Republic of China (Taiwan), which is akin to a natural experiment in the capacity of a constitutional court to make use of foreign law even when it is largely deprived of contact with other courts. Taiwan's precarious diplomatic situation effectively precludes the members of its Constitutional Court from participating in international judicial gatherings or visits to foreign courts. Nevertheless, the Taiwanese Constitutional Court nearly always engages in extensive comparative constitutional analysis, either expressly or implicitly, when rendering its decisions. To explain how and why the Court makes use of foreign law notwithstanding its isolation, this Article combines quantitative analysis of citations to foreign law in the Court's published opinions with in-depth interviews of numerous current and former members of the Court and their clerks.

Comparison of the Taiwanese Constitutional Court and U. S. Supreme Court demonstrates that "global judicial dialogue" plays a much smaller role in shaping a court's utilization of foreign law than institutional factors such as (a) the rules and practices governing the composition and staffing of the court and (b) the extent to which the structure of legal education and the legal profession incentivizes judges and academics to possess expertise in foreign law. Notwithstanding the fact that American justices enjoy unsurpassed opportunities to interact with judges from other countries, comparative analysis plays a less frequent role in their own constitutional jurisprudence than in that of their foreign counterparts. Openness on the part of individual justices to foreign law ultimately cannot compensate for the fact that the hiring and instructional practices of American law schools neither demand nor reward the possession of foreign legal expertise.

This Article also documents the fact that judicial opinions are a highly misleading source of data about judicial usage of foreign law. Interviews with members of the Taiwanese Constitutional Court and their clerks reveal the existence of a large gap between the frequency with which the court cites foreign law in its opinions and the extent to which it actually considers foreign law. Analysis of judicial opinions alone may lead scholars to conclude mistakenly that a court rarely engages in comparative analysis when, in fact, such analysis is highly routine.

INTRODUCTION: MUCH ADO ABOUT NOTHING?. ....................525

I. COMPARATIVE ANALYSIS: DIALOGUE OR MONOLOGUE?...........................................................................528

II. THE LIMITED IMPACT OF JUDGE-TO-JUDGE DIALOGUE..................................................................................535

A. Behind Closed Doors: The Mystery Surrounding Judge-to-Judge Dialogue ................................................................ 535

B. A Natural Experiment in Dialogue Deprivation................... 538

C. Taiwan: The Most Marginalized Democracy in the World . 540

D. The History and Structure of Taiwan's Constitutional Court . .................................................................................... 544

E. The Growing Isolation of Taiwan's Judges.........................548

F. A Statistical Analysis of Foreign Law Citation by Taiwan's Constitutional Court.............................................557

G. Behind the Scenes: The Court's Extensive Usage of Foreign Law ......................................................................... 558

H. How the Justices Do-and Do Not-Learn About Foreign Law. ........................................................................563

III. THE CAUSES OF COMPARATIVISM: WHY THE U.S. SUPREME COURT AND TAIWANESE CONSTITUTIONAL COURT APPROACH FOREIGN LAW SO DIFFERENTLY. .....................................................................568

CONCLUSION: THE CONSEQUENCES OF ACADEMIC PAROCHIALISM AND THE COST OF CONSTITUTIONAL INFLUENCE. ........................................575

INTRODUCTION: MUCH ADO ABOUT NOTHING?

No aspect of the globalization of constitutional law has thus far attracted more attention or controversy than the use of foreign and international legal materials by constitutional courts. (fn1) Although judicial citation of foreign law is hardly a new phenomenon, there is a widespread sense that constitutional courts are turning more frequently to foreign jurisprudence for guidance and inspiration.(fn2) Moreover, the manner in which courts and judges interact with one another has changed in ways that are said to have systemic implications for the global evolution of constitutional law. Prominent scholars and jurists now speak in glowing terms of the emergence of a "global" or "international" or "transnational judicial dialogue"(fn3) that unites judges around the world in a "common global judicial enterprise. "(fn4) It is said that, by engaging in "open" and "self-conscious" debate with courts in other countries over common questions of both substance and methodology, constitutional courts not only "improve the quality of their particular national decisions," but also "contribute to a nascent global jurisprudence," most notably in the area of human rights.(fn5)

Several varieties of global judicial dialogue are said to exist. One variety, which has already been mentioned, is comparative analysis of the type found in judicial decisions. Although judicial citation of foreign law is hardly a new phenomenon,(fn6) it is increasingly suggested that the manner in which constitutional courts analyze the work of their counterparts in other countries is characterized by such a degree of mutual engagement and substantive debate that it amounts to an ongoing conversation conducted through the medium of judicial opinions.(fn7) A second variety of global judicial dialogue is dialogue in a literal sense, in the form of "direct interactions"(fn8) and networking among judges. This type of dialogue has been fostered by technological advances, such as the internet, that have lowered the barriers to international communication, and by the deliberate efforts of academic institutions, intergovernmental and international organizations, and constitutional courts themselves to generate proliferating opportunities for face-to-face interaction, in the form of conferences, visits, and the like. (fn9)

It is not the goal of this Article to contribute to the normative debate over whether global judicial dialogue is cause for celebration or consternation. Nor is it our purpose to evaluate the normative arguments in favor of an interpretive posture of "engagement"(fn10) or a "dialogical" approach to comparative analysis.(fn11) This Article aims, instead, to explain as an empirical matter why the concept of "global judicial dialogue" neither describes the actual practice of comparative analysis by judges nor explains the emergence of a global constitutional jurisprudence. We also demonstrate that the frequency with which a court cites foreign law in its opinions is an extremely unreliable measure of the extent to which the court actually makes use of foreign law. Scholars who wish to understand or measure a particular court's usage of foreign law must therefore be prepared to supplement quantitative research methods, such as statistical analysis of citations to foreign law, with qualitative approaches that are capable of probing more deeply, such as interviews with court personnel.

Part II of this Article argues that the notion of "dialogue" is, both conceptually and empirically, an inapt metaphor for the comparative analysis performed by constitutional courts. Part III takes advantage of a natural experiment in judicial isolation to show that judge-to-judge...