Isolation Versus Engagement: The Taiwanese Constitutional Court's Use of Foreign Law

Abstract:

It has been said that constitutional court judges around the world increasingly participate in a "global judicial dialogue" that causes judges to make increased use of foreign law.  This is a dialogue, however, from which the members of the Taiwanese Constitutional Court are largely excluded.  Taiwan’s precarious diplomatic situation and intense lobbying by China have effectively prevented the members of Taiwan's Constitutional Court from participating in international judicial gatherings and official visits to foreign courts. Nevertheless, the Taiwanese Constitutional Court routinely engages in extensive consideration of foreign law, either expressly or implicitly, when deciding cases.  This fact casts doubt on the notion that "global judicial dialogue" explains judicial use of foreign law.  Comparison of the Taiwanese Constitutional Court and U.S. Supreme Court demonstrates that “global judicial dialogue” plays a much smaller role in shaping a court’s utilization of foreign law than institutional factors such as (a) the rules and practices governing the composition and staffing of the court and (b) the extent to which the structure of legal education and the legal profession incentivizes judges and academics to possess expertise in foreign law.

Speaker Bio:

David Law is Professor of Law and Professor of Political Science at Washington University in St. Louis and Visiting Professor at Georgetown University Law Center. He works in the areas of law and political science, public law, judicial behavior, comparative constitutional law, and comparative judicial politics. Born and raised in Canada, he holds a Ph.D. in political science from Stanford, a B.C.L. in European and Comparative Law from the University of Oxford, and a J.D. from Harvard Law School. He has previously taught at the University of San Diego School of Law and the University of California, San Diego political science department and has been a visiting professor at the National Taiwan University College of Law, Seoul National University School of Law, and Keio University Faculty of Law in Tokyo, and a visiting scholar at the NYU School of Law. His current research focuses on the identification, explanation, and prediction of global patterns in constitutional law, and his recent scholarship on constitutional globalization and the declining influence of the U.S. Constitution has been featured in a variety of domestic and international media.