The Limits of Transnational Judicial Dialogue
The notion that “transnational judicial dialogue” is contributing to the globalization of constitutional law has attracted considerable scholarly attention. Numerous 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 an increasing amount of direct interaction between judges, face-to-face or otherwise, fuels the growth of a global constitutional jurisprudence.
This Article challenges the coherence and accuracy of these claims. The first part argues that 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.” The second part shows empirically that judicial interaction is neither a necessary nor a sufficient cause of constitutional globalization, and that the actual impact 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 basis of our empirical argument concerning the actual effects of judicial interaction is a comparative case study of the Constitutional Court of the Republic of China (Taiwan), which constitutes 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 ensures that the members of its Constitutional Court are effectively precluded from participating in international judicial gatherings or visits to foreign courts. Nevertheless, Taiwan’s 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, we combine statistical 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.
We conclude that “transnational 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. Our conclusion that institutional factors outweigh judicial dialogue in determining a court’s reliance on foreign law helps to explain the behavior of not only the Taiwanese Constitutional Court, but also the United States Supreme Court. Notwithstanding the fact that American justices enjoy extensive, if not unrivaled, 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.
Our research also demonstrates that judicial opinions are a highly misleading source of data about judicial usage of foreign law. As our interviews with members of the Taiwanese Constitutional Court reveal, the frequency with which a court cites foreign law in its opinions does not necessarily reflect 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.
David S. Law and Wen-Chen Chang. "The Limits of Transnational Judicial Dialogue" Washington Law Review 86.3 (2011).