Constitutional courts worldwide are increasingly turning to legal arguments and ideas from other countries for guidance and inspiration. But scholarly interest in the growing judicial use of foreign law paints a very misleading picture of the globalization of constitutional law, says David Law, JD, PhD, professor of law at Washington University in St. Louis.
“It is inaccurate to characterize the manner in which constitutional courts cite and analyze foreign jurisprudence as a form of ‘dialogue,’” he writes.
“Judicial interaction is neither a necessary nor a sufficient cause of constitutional globalization. Judges’ use of foreign law depends more on their country’s legal and educational system structures than how they interact with other judges.”
Law, also a professor of political science in Arts & Sciences at WUSTL, says that for those who want to see the U.S. Supreme Court make greater and more sophisticated use of foreign law, encouraging its members or inviting them to additional conferences and gatherings is likely to have little impact.
“At this point in time, the greatest obstacle to judicial comparativism in the United States is not the unwillingness of individual judges to consider foreign legal materials, it is the current political economy of the American legal education,” he says.
“To ensure an adequate supply of outstanding judges and clerks with foreign legal training requires a sea change in American legal education.
“The day that American law students prize a degree in comparative law as a stepping stone to a Supreme Court clerkship or a teaching position in an American law school will be the day judicial comparativism has become truly institutionalized,” Law says.
Law and co-author Wen-Chen Chang, JSD, associate professor at National Taiwan University College of Law, discuss “The Limits of Global Judicial Dialogue” in a recent issue of the Washington Law Review.
For more information, visit: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1798345