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Abstract

The discipline of comparative constitutional law today is focused in significant part on the study of how and why judges use foreign precedent. Scholars debate the propriety of using foreign precedent as “authority,” circumstances under which such use is consistent with democracy (or a product of democratization), and which constitutional traditions may derive the greatest benefit from comparison. While comparative law theorists have long reflected on, and struggled with, a standard disciplinary vocabulary to describe what judges do when they engage in “comparative constitutional law,” the existing scholarship generally distributes judges’ use of foreign precedent into one of three modes of comparative adjudication. First, courts use foreign precedent to identify “universal” principles of law applicable across jurisdictions. Second, courts sharpen understanding of domestic law through contrasting foreign judgments. Third, courts use foreign authority to identify, then choose, constitutionally permissible options to solve jurisprudential or policy problems. These theories have a methodological approach in common: scholars analyze the treatment given certain foreign decisions and sort the cases into one category or another. This Article is in part an effort to consolidate these descriptive categories. It is also aimed at building the body of scholarship devoted to constitutional borrowing as an activity undertaken by constitutional courts as part of their political competition with legislatures and executives. Specifically, judges may borrow from each other not only or even mostly in order to shed light on a constitutional dispute but rather to mutually reinforce the political authority of each to render orders, which scale back executive or legislative prerogatives. By “constitutional borrowing”, I mean specifically judges’ consideration of decisions reached by judges in foreign jurisdictions in contrast to borrowing in the wider context of constitutional drafting or institutional design.

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