Generic Constitutional Law
David S. Law
Washington University in Saint Louis - School of Law; Washington University in Saint Louis - Department of Political Science
July 29, 2012
Minnesota Law Review, Vol. 89, p. 652, 2005
San Diego Legal Studies Paper No. 05-28
Washington University in St. Louis Legal Studies Research Paper No. 11-04-04
As Justice Breyer has observed, "[j]udges in different countries increasingly apply somewhat similar legal phrases to somewhat similar circumstances." This article explains why constitutional law is bound to display strong underlying similarities, if not signs of convergence, across subnational and national borders. The explanation is threefold. First, constitutional courts experience a common theoretical need to justify countermajoritarian judicial review. This concern, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, for heuristic reasons, courts employ common problem-solving skills in constitutional cases, which together constitute a kind of generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that encourage the adoption of similar legal rules. These similarities make up a body of generic constitutional doctrine. In conclusion, the article discusses how constitutional pedagogy should be reformed to take account of these developments, and whether judges can or should resist the advent of generic constitutional law.
Number of Pages in PDF File: 100
Keywords: Constitutional law, comparative law, comparative constitutional law, comparative public law, constitutional theory, comparative constitutional theoryAccepted Paper Series
Date posted: September 22, 2004 ; Last revised: August 30, 2012
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