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Referring To Foreign Law In Constitutional Interpretation: An Episode In The Culture Wars, Mark V. Tushnet
Referring To Foreign Law In Constitutional Interpretation: An Episode In The Culture Wars, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
As Judge Messitte's essay demonstrates, recent references in Supreme Court decisions to non-U.S. legal materials have generated a great deal of controversy. Those who make such references say that doing so is no big deal. I have called the controversy a tempest in a teapot. My topic here is the disjuncture between the perception on one side that something important and troubling has happened - or, as I will argue, may be about to happen - and the perception on the other that there is nothing to be concerned about. After describing in Section I the practice that has given …
"A Decent Respect To The Opinions Of Mankind": Referring To Foreign Law To Express American Nationhood, Mark V. Tushnet
"A Decent Respect To The Opinions Of Mankind": Referring To Foreign Law To Express American Nationhood, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Why might a court refer to non-U.S. law? Justice Stephen Breyer's pragmatic defense of the practice is probably the most widely known, as are its defects. Here, I want to sketch a counterintuitive explanation for the practice. Referring to non-U.S. law in Supreme Court opinions might be a way in which Supreme Court Justices participate in the dissemination of a distinctively American self-understanding. By this I do not mean that Justices who refer to non-U.S. law necessarily endorse the (reasonable) interpretive theory that the U.S. Constitution instantiates universally true propositions of political morality. Rather, I mean that references to non-U.S. …
When Is Knowing Less Better Than Knowing More? Unpacking The Controversy Over Supreme Court Reference To Non-U.S. Law, Mark V. Tushnet
When Is Knowing Less Better Than Knowing More? Unpacking The Controversy Over Supreme Court Reference To Non-U.S. Law, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
My goal in this Essay is simply to lay out the criticisms of the use of non-U.S. law in constitutional interpretation, so as to identify what might be correct (not much, in the end) in those criticisms. I discuss criticisms based on theories of interpretation, on the claim that reference to non-U.S. law is merely decoration playing no role in generating outcomes, on the role the Constitution has in expressing distinctively American values, and on the proposition that judges are unlikely to do a good job in understanding - and therefore in referring to - non-U.S. law. This last "quality-control" …
Marbury V. Madison Around The World, Mark V. Tushnet
Marbury V. Madison Around The World, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
To put the point somewhat strongly for emphasis, the U.S. system of judicial review is now something of an outlier among systems of constitutional review. In this Essay, I consider three aspects of such systems: the structures of review, the theories of review, and the forms of review. My aim is primarily one of description, aiming to highlight the ways in which the U.S. system resembles and differs from the newer systems of judicial review. The U.S. system of judicial review has close-and more distant-relatives in each of these categories. However, the U.S. system remains distinctive in that it combines …
Interpreting Constitutions Comparatively: Some Cautionary Notes, With Reference To Affirmative Action, Mark V. Tushnet
Interpreting Constitutions Comparatively: Some Cautionary Notes, With Reference To Affirmative Action, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
It has now become the conventional wisdom that many justices on the United States Supreme Court are thinking about the relevance of comparative constitutional law to the interpretation of the United States Constitution. An emerging conservative critique of doing so questions the democratic legitimacy of the practice. I believe that those questions are badly formed, but that other questions are worth raising about the (perhaps) emerging practice. In this comment I identify some reasons for caution about the use of transnational comparative law in interpreting domestic constitutions. Some reasons are institutional, others arise from the doctrinal context within which particular …
New Forms Of Judicial Review And The Persistence Of Rights - And Democracy-Based Worries, Mark V. Tushnet
New Forms Of Judicial Review And The Persistence Of Rights - And Democracy-Based Worries, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Recent developments in judicial review have raised the possibility that the debate over judicial supremacy versus legislative supremacy might be transformed into one about differing institutions to implement judicial review. Rather than posing judicial review against legislative supremacy, the terms of the debate might be over having institutions designed to exercise forms of judicial review that accommodate both legislative supremacy and judicial implementation of constitutional limits. After examining some of these institutional developments in Canada, South Africa, and Great Britain, this Article asks whether these accommodations, which attempt to pursue a middle course, have characteristic instabilities that will in the …