Judicial Review and the Politics of Comparative Citations: Theory, Evidence & Methodological Challenges
Forthcoming in: Comparative Judicial Review Erin F. Delaney and Rosalind Dixon, eds. (Edward Elgar, 2018)
23 Pages Posted: 29 May 2017 Last revised: 1 Jun 2017
Date Written: May 28, 2017
What explains where, when and how the judicial imagination travels in its search for comparative reference? Possible answers emanate from: (i) historical accounts of engagement with the constitutive laws of others that examine episodes of selective constitutional borrowing and reference; (ii) comparative public law scholarship that stresses the significance of various structural and disciplinary elements, most notably legal training, legal tradition and linguistic capacity, in elucidating patterns of transnational judicial dialogue; and (iii) from social science accounts that stress the significance of strategic and socio-political factors in explaining selective judicial engagement with the constitutive laws of others. In this chapter, I elucidate the main findings and assess the contribution of each of these approaches.
Keywords: comparative constitutional law; judicial review; comparative reference; comparative citations; constitutional borrowing; constitutional identity
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