Lower Courts and Constitutional Comparativism
Roger Paul Alford
Notre Dame Law School
April 2, 2009
Fordham Law Review, Vol. 77, November 2008
Pepperdine University Legal Studies Research Paper No. 2009/3
The issue of constitutional comparativism has been a topic of significant commentary in recent years. However, there is one aspect of this subject that has been almost completely ignored by scholars: the reception, or lack thereof, of constitutional comparativism by state and lower federal courts. While the Supreme Court's enthusiasm for constitutional comparativism has waxed and now waned, lower state and federal courts have remained resolutely agnostic about this new movement. This is of tremendous practical significance because over ninety-nine percent of all cases are resolved by lower state and federal courts. Accordingly, if the lower courts eschew constitutional comparativism, then this constitutes the rejection of a comparative interpretive methodology in virtually all cases. This article examines this issue in consideration of the related opinions of two leading constitutional law scholars, David Fontana (who favors the use of comparative material in lower courts) and Vicki Jackson (who opposes it).
Number of Pages in PDF File: 21
Keywords: constitution, international, comparative, courts, state court, federal court, foreign, constitutional, comparativism
Date posted: April 3, 2009
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