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Lower Courts and Constitutional Comparativism

21 Pages Posted: 3 Apr 2009  

Roger Paul Alford

Notre Dame Law School

Date Written: April 2, 2009


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).

Keywords: constitution, international, comparative, courts, state court, federal court, foreign, constitutional, comparativism

Suggested Citation

Alford, Roger Paul, Lower Courts and Constitutional Comparativism (April 2, 2009). Fordham Law Review, Vol. 77, November 2008; Pepperdine University Legal Studies Research Paper No. 2009/3. Available at SSRN:

Roger Paul Alford (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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