Comparative and Foreign Law


Debating the Declining Influence of the United States Constitution: A Response to Professors Choudhry, Jackson, and Melkinsburg

David S. Law, Mila Versteeg

This brief essay responds to the commentaries by Professor Choudhry, Professor Jackson, and Professors Elkins, Ginsburg, and Melton (“Melkinsburg”) on our article, The Declining Influence of the United States Constitution. We agree with much of the substance of their thoughtful commentaries, especially their calls for methodological pluralism and broader-ranging empirical research. Some of our differences, meanwhile, are matters of emphasis and framing. For example, their point that the U.S. Constitution remains influential upon constitution writing at a high level of abstraction is one that we make ourselves. We also emphasize, however, that highly abstract similarities are no indication that constitutional drafters in other countries find the U.S. Constitution a useful or attractive model to emulate as a practical matter.

Our most significant disagreement lies with two of Melkinsburg’s arguments. First, they contend that we have misinterpreted our empirical findings of declining similarity to the U.S. Constitution as evidence of declining influence. We reject their suggestion, however, that the U.S. Constitution can only be said to have lost influence to the extent that its “essential elements” have been repudiated. No definition of a concept such as influence can be proclaimed exclusively correct by fiat. Moreover, their definition comports neither with intuition nor with our goal of identifying where constitutional drafters today look for inspiration.

Second, they argue that the trends we identify as belonging to the late twentieth century are merely continuations of trends that actually began in the mid-nineteenth century. In our view, their analysis gives insufficient consideration to two dynamics that render post–World War II constitutional trends qualitatively distinct from nineteenth-century trends. Those two dynamics are constitutional proliferation, meaning an explosion in the sheer number of constitutions, and constitutional standardization, or the increasing use of increasingly standard constitutional models that bear limited resemblance to the U.S. Constitution. Constitutional drafting today reflects the emergence of pockets of consensus in a densely populated constitutional environment that simply did not exist in the mid-nineteenth century or even the early twentieth century. Any conclusions that Melkinsburg draw from ostensibly global nineteenth-century data are likely to be disproportionately influenced by the atypical experience of Latin American constitutionalism. Our focus, by contrast, is upon a late twentieth-century process of constitutional standardization that ultimately bypassed the U.S. Constitution in favor of a more genuinely global synthesis.

Comments on Law and Versteeg’s The Declining Influence of the United States Constitution

Zachary Elkins, Tom Ginsburg, James Melton

It was with great interest that we read David Law and Mila Versteeg’s thoughtful article on the influence of the U.S. Constitution. Their piece contributes some very useful and clearly-drawn empirical benchmarks, which will undoubtedly advance the conversation about the historical role of the U.S. Constitution in interesting and even provocative ways. Law and Versteeg provide many empirical nuggets to consider.

Method in Comparative Constitutional Law: A Comment on Law and Versteeg

Sujit Choudhry

Of the many questions raised by David Law and Mila Versteeg’s important article, I want to focus on two. First, as a methodological matter, do they measure constitutional convergence and divergence in the right way? Second, what is the relationship between quantitative, large-n work of the genre represented by Law and Versteeg’s article and small-n, qualitative work that has hitherto been the favored methodological approach in comparative constitutional law and politics?

The Declining Influence of the United States Constitution

David S. Law, Mila Versteeg

It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries.

In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions. On the basis of this data, we are able to identify the world’s most and least generic constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream.

The fact that the U.S. Constitution is not widely emulated raises the question of whether there is an alternative paradigm that constitutional drafters in other countries now employ as a model instead. One possibility is that their attention has shifted to some other prominent national constitution. To evaluate this possibility, we analyze the content of the world’s constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. We find some support in the data for the notion that the Canadian Charter of Rights and Freedoms has influenced constitution making in other countries. This influence is neither uniform nor global in scope, however, but instead reflects an evolutionary path shared primarily by other common law countries. By comparison, we uncover no patterns that would suggest widespread constitutional emulation of Germany, South Africa, or India.

Grading Regulators: The Impact of Global and Local Indicators on Vietnam’s Business Governance

Trang (Mae) Nguyen

International indicators are widely used as diagnostic tools for global governance. For the developing world, with scarce resources and complex social problems, indicators can help businesses, donors, and policymakers identify issues, tailor solutions, and measure impacts. This Note studies the dynamics between global and domestic indicators in Vietnam, particularly the ways they influence Vietnam’s policy processes. It finds that while global indicators have advanced the notion of competitiveness and made it a priority of the national government, sub-national indicators—here, a ranking of Vietnam’s provinces—play a significant role as a more tailored and focused tool to motivate internal competition for pro-business reforms. This Note therefore confirms the dominant viewpoint that global indicators influence a country’s development agenda, but concludes that this effect is even more pronounced in the presence of robust local indicators.

Rethinking Review of Foreign Court Jurisdiction in Light of the Hague Judgments Negotiations

Audrey Feldman

The United States is distinct among nations in its constitutionalization of personal jurisdiction. This Note explains the intertwined history of U.S. specific jurisdiction law and the so-called “Hague Judgments Project,” which is facilitating negotiations toward a treaty regulating recognition and enforcement of foreign judgments. This Note argues that the constitutionality of any such proposed treaty will remain uncertain unless U.S. courts clarify existing personal jurisdictional doctrine, particularly regarding the “jurisdictional filters” question: May U.S. courts lawfully recognize and enforce a foreign judgment issued upon a jurisdictional basis that would have been unconstitutional in domestic litigation? This Note answers “yes,” at least when the foreign court’s exercise of personal jurisdiction is compatible with internationally accepted norms. By proposing a cogent response to this question, this Note hopes to facilitate the negotiation and adoption of a future judgments convention.

Maimonides, Miranda, and the Conundrum of Confession: Self-Incrimination in Jewish and American Legal Traditions

Becky Abrams Greenwald

This Note argues that both Jewish and American law express skepticism about self-incriminating statements based on concerns of reliability, respect for the individual, and the religious belief that confessions can be offered only to God. However, both traditions also recognize that certain circumstances necessitate the use of self-incriminating statements. This Note compares the two traditions to unearth a deep tension within legal and cultural conceptions of self-incrimination and confession. Specifically, the Note proposes that both Jewish and American law reflect conflicting desires—to simultaneously accept and reject self-incriminating statements. On the one hand, confessions appear to be powerful evidence of guilt, as well as a helpful part of the process of punishing and rehabilitating criminal offenders. On the other hand, confessions uncomfortably turn the accused into his own accuser, raising concerns about whether the confession was the result of unreliable internal self-destructive instincts or external coercion. Future decisions involving self-incriminating statements must be made with an awareness of both the benefits and the hazards of utilizing such statements.

Mending Guatemala’s Tourism Industry Through Private Regulation

Christina M. Argueta

Tourism is an increasingly important source of capital in numerous developing nations, and it accounts for an inflow of nearly $1.4 billion to Guatemala each year. Yet tourism also carries with it negative side effects, principally environmental and cultural degradation. International NGOs working in Guatemala tout a preservationist brand of tourism, yet anthropologists and environmentalists have documented how the tourism industry—and the NGOs that compose it—continually fall short of preservationist goals. This Note suggests that a solution to the industry’s harms lies in private regulation, specifically in a tourism-specific code of conduct. This Note demonstrates how a code would fit within the industry’s current regulatory scheme, explains why the NGOs that dominate the industry would adhere to a code, and identifies specific provisions that should be included in a code to directly target tourism’s environmental and cultural harms.

44.1 Luftballons: The Communication Breakdown of Foreign Law in the Federal Courts

Matthew J. Ahn

Foreign law has become an increasingly important element of many cases brought before federal courts. Rule 44.1, which controls determinations of foreign law, is intended to make the process for determining foreign law as painless as possible, but like the regime that preceded it, it has become a procedural minefield for those wishing to rely on foreign law, as courts have declined to apply Rule 44.1 when it should be used, either deliberately or due to uncertainty as to its application. This is in large part due to the lack of concrete standards outlined in the rule. This Note examines the standards associated with the rule and their application in the years immediately after its promulgation and concludes that the reliant party’s burden of production with respect to foreign law should vary based on whether statutory text is provided. If a statute is available, the courts should be required to undertake a Rule 44.1 analysis, while if a statute is unavailable, the reliant party should bear the burden of producing substantial evidence of foreign law. This standard, elaborated in the text of Rule 44.1, should ensure that as many foreign law determinations as possible can be resolved on the merits.

Presidential War Powers as an Interactive Dynamic: International Law, Domestic Law, and Practice-Based Legal Change

Curtis A. Bradley, Jean Galbraith

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allow the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be distinct legal issues. This Article, by contrast, considers these two bodies of law together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels between the structure of the international and domestic legal regimes governing the use of force, and it explains how this structure tends to incentivize unilateral action. Second, it theorizes that these two bodies of law are interconnected in previously overlooked ways, such that how the executive branch interprets law in one context can be and often is informed by the other legal context. Third, it documents these interactions over time for several important components of the law on the use of force and shows that this dynamic has played a significant role in justifying the practice-based expansion of unilateral war powers. The Article concludes by arguing that both scholars and policymakers seeking to shape the law on the use of force need to take better account of this interactive dynamic.