For Comparative Legal Research, American Law Appears No Longer Dominant

That’s the implication of a piece in today’s NYT as part of its American exceptionalism series, entitled Supreme Court’s Global Influence Is Waning .

It has been surprising (in the twenty-five plus years) since the Charter was introduced, how little our courts regard the details of the US jurisprudence in their decisions.

I’m currently reading Toobin’s The Nine – and it also looks as if the US court is so ideologically riven that no court would look there for coherent principle.

The NYT piece doesn’t cite much research, though the following references are of interest:

From 1990 through 2002, for instance, the Canadian Supreme Court cited decisions of the United States Supreme Court about a dozen times a year, an analysis by The New York Times found. In the six years since, the annual citation rate has fallen by more than half, to about five.

Australian state supreme courts cited American decisions 208 times in 1995, according to a recent study by Russell Smyth, an Australian economist. By 2005, the number had fallen to 72.

Do any Slaw readers know whether any quantitative assessment has been done in this area since Ulrich Drobnig and Sjef Van Erp’s collection of essays on the Use of Comparative Law by Courts and Basil Markesinis’ Comparative Law in the Courtroom and Classroom?

Comments

  1. Hi Simon:

    In Chapter 7 of the 2nd edition of my Irwin Law Legal Research and Writing book, I cite the following Canadian sources on this issue, all of which are around the same vintage:

    C.L. Ostberg, Matthew E. Wetstein and Craig R. Ducat, “Attitudes, Precedents and Cultural Change: Explaining the Citation of Foreign Precedents by the Supreme Court of Canada”(2001) 34 Can. J. Pol. Sc. 377

    Peter McCormick, “The Supreme Court of Canada and American Citations 1945-1994: A Statistical Overview” (1997) 8 Sup. Ct. L. Rev. (2d) 527

    Peter McCormick, “What Supreme Court Cases does the Supreme Court Cite? Follow-up Citations on the Supreme Court of Canada, 1989-1993” (1996) 7 Sup. Ct. L. Rev. (2d) 451

    Christopher Manfredi, “The Use of United States Decisions by the Supreme Court of Canada Under the Charter of Rights and Freedoms” (1990) 23 Can. J. Pol. Sc. 499

    Ian Bushnell, “The Use of American Cases” (1986) 35 U.N.B.L.J. 157.

    It’s been awhile since I read these articles but I think it is safe to say they generally document a slight rise in the use of American decisions in the early days of the Charter with a gradual decline in more recent years.