[86WashLRev0523] The Limits of Global Judicial Dialogue

Abstract

David S. Law, Professor of Law and Professor of Political Science, Washington University in St. Louis; Visiting Scholar, New York University School of Law; Visiting Professor and Fulbright Scholar, National Taiwan University College of Law, 2010–11. Wen-Chen Chang, Associate Professor, National Taiwan University College of Law.

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 As a conceptual matter, constitutional courts do not cite one another for the purpose of communicating with another, while as an empirical matter, there is little evidence to suggest that one-sided citation of a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 anatural 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 indepth 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.