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conceptual matter, constitutional courts do not cite one another for the purpose of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.