Comparative Reasoning and Judicial Review

Abstract

Many states have enacted constitutions that are influenced by the U.S. Constitution, and foreign courts often look to the jurisprudence of the U.S. Supreme Court or other foreign courts for guidance. The US. Supreme Court, however, remains insulated from constitutional developments in other countries, despite calls by some Justices for greater openness to foreign law as a comparative tool. This Article examines the ramifications of a comparative approach to judicial reasoning and examines how attitudes toward the use of foreign and comparative analysis can be understood as parts of more general theories of judicial review and authority. The Article compares recent case law of the US. Supreme Court and the Supreme Court of Canada to construct enforcement and dialogic models of judicial reasoning. The analysis juxtaposes judicial attitudes about foreign law to concerns about local authority and the interrelationship of legal institutions in a domestic system. The purpose is not to detail how the use of foreign law impacts the development of a particular legal doctrine, but rather to discuss how the acceptance or rejection of foreign law fits within or transforms other aspects of judicial reasoning. The Article ultimately suggests that comparative analysis neither necessarily undermines local authority nor disconnects legal analysis from its local origins when encompassed in the dialogic model.