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Tushnet on the Globalization of Constitutional Law

By Lawrence Solum

pMark Tushnet (Harvard University - Harvard Law School) has posted a href=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1317766The Inevitable Globalization of Constitutional Law/a (Hague Institute for the Internationalization of Law) on SSRN.nbsp; Here is the abstract:/pblockquote/blockquoteblockquotepThis Essay examines the forces pushing the presently varying forms of domestic constitutional law toward each other, and the sources of and forms of resistance to that globalization (or convergence, or harmonization). After a brief introduction sketching claims for the existence of a quot;post-war paradigmquot; of domestic constitutional law and competing claims about national exceptionalism, the Essay sketches the quot;top downquot; pressures for convergence - judicial networks and actions by transnational institutions, including transnational courts, international financial institutions, and transnational NGOs. It then turns to quot;bottom upquot; pressures, from domestic interests supporting local investments by foreign investment and high-level human capital and from lawyers engaged in transnational practice. A discussion of counterpressures from the supply side follows. These counterpressures include resistance from local interests, including authoritarian or semi-authoritarian political elites, and subtle but perhaps deliberate misunderstandings that can arise when superficially similar legal arrangements take on distinctive local meanings. The Essay discusses whether the mechanisms it identifies lead to a race to the quot;top,quot; to the quot;bottom,quot; or to some more variegated location. It concludes with a brief treatment of how the globalization of domestic constitutional law can be accommodated to local notions of separation of powers./p/blockquotepspan style=color: #0000ff;strongAnd from the paper:/strong/span/pblockquotepspan style=color: #000000;Most scholarship on the globalization of domestic constitutional law focuses on top-down processes.nbsp; Probably the most widely known is Anne-Marie Slaughter?s work on the development of cross-national networks of constitutional court judges, akin to the cross-national networks she finds throughout the contemporary international system.11nbsp; Judges of the world?s constitutional courts now meet regularly in academic and other conferences, and some serve with others on various transnational bodies.nbsp; Slaughter suggests that personal interactions at least conduce to and probably encourage judges to consider and occasionally adopt solutions to problems they come to see as common across constitutional systems.12nbsp; Personal contact will show a judge of a constitutional court in one nation that judges occupying similar positions elsewhere often confront the same kinds of problems the first judge does, that those judges seem to be sensible people and reasonably astute lawyers, and that the first judge could probably do worse than take their solutions seriously as she attempts to solve the problems she faces.nbsp; For some, judges in other nations will become members of the reference group of people whose judgments about their own work matter.nbsp; And, apart from these networking connections, as the world?s elites become more cosmopolitan ? as trends in education and transnational career paths suggest they will ? they will be increasingly inclined to view decisions taken elsewhere as worth considering as they deal with domestic constitutional problems. br /br / As Weinrib?s account suggests, convergence can occur narrowly, for example with respect to the general approach constitutional court judges take to government efforts to regulate speech critical of government policy that executive officials believe poses some threat of social disorder.nbsp; Or it can occur more broadly, as with the formulation of proportionality tests in numerous doctrinal domains.nbsp; But, in this phase of the analysis, what propels convergence is personal contact among sensible lawyers seeking to perform what they come to understand to be similar jobs./span/p/blockquotepstrongspan style=color: #0000ff;And:/span/strong/pblockquotepDavid Law connects globalization and constitutional rights by means of market processes.22nbsp; He argues that economic globalization includes competition among nations for investment and human capital.nbsp; Nations compete by offering investors and those with high levels of human capital ? the well-educated and trained ? attractive packages of benefits.nbsp; An important component of those packages, Law argues, is constitutional protection. The argument as to investors is straight-forward.23nbsp; When considering where to place their capital, investors will consider the returns they are likely to receive on the investment.nbsp; Consider an investor choosing between one nation that offers a relatively high rate of return, but does not guarantee that the investor will actually be able to realize the returns because the nation?s constitution authorizes the government to expropriate investments and returns at will, and a nation offering a slightly lower rate of return.nbsp; As Law puts it, investors ?seek .nbsp; .nbsp; . to maximize their risk-adjusted returns.?24 /p p Depending on the size of the gap and the likelihood of expropriation, the second nation may be able to attract the investment by coupling the lower rate of return with an assurance that the returns will actually be realized.nbsp; And it can do that by providing constitutional protections for investment, to be enforced by an independent court (that is, a court not under the control of the executive government).nbsp; To meet that competition, the first nation will adopt similar constitutional protections.nbsp; So, through a race to the top, globalization induces one nation after another to adopt constitutional protections for property rights, enforced by independent courts.25/p/blockquotepstrongspan style=color: #0000ff;I learned much from this brief, insightful, and very learned essay.nbsp; Highly recommended to all, but especially if you want a quick introduction to these issues./span/strong/p

Full post as published by Legal Theory Blog on December 22, 2008 (boomark / email).