Brown Abroad: An Empirical Analysis of Foreign Judicial Citation and the Metaphor of Cosmopolitan Conversation
Lyke, Sheldon Bernard, Vanderbilt Journal of Transnational Law
This Article generates a data set (twelve courts and thirty-two decisions) of foreign judicial citations to the landmark U.S. Supreme Court decision in Brown v. Board of Education. The purpose of this Article is to learn what happens when a case is deterritorialized and reconstituted in a different national scenario, and to conceptualize how courts around the world use foreign authority. My analysis reveals that few foreign courts used Brown in decisions involving education or race and ethnicity. Foreign courts used the case as a form of factual evidence, as a guide in understanding the proper role of a court with respect to decision making, and as a source of substantive law in discussions on equal protection. Although central to comparative law, the legal transplant metaphor does not adequately explain the transnational use of Brown. By incorporating sociological theories of diffusion and innovation, I attempt to reconcile some of the flaws of the transplant metaphor and argue that conceptualizing judiciaries' use of foreign law as a cosmopolitan conversation is more appropriate. Cosmopolitan conversation has led to forms of legal learning and innovation when courts have cited, interpreted, and infused their own meaning into the Brown decision.
TABLE OF CONTENTS I. INTRODUCTION II. METHODS A. Sample Generation B. Data Collection and Analysis III. RESULTS A. Overall Trends B. Categorizing the Use of Brown 1. Brown as a Form of Factual Evidence a. The Importance of Education b. Existence of Stigma c. Context and History 2. Brown as a Guide to Understanding the Role of the Judiciary a. Stare Decisis b. Political Questions c. Remedy and Relief 3. Brown as a Source of Substantive Law: Equal Protection IV. DISCUSSION: FROM LEGAL TRANSPLANT TO COSMOPOLITAN INNOVATION V. CONCLUSION AND IMPLICATIONS FOR FUTURE RESEARCH
Foreign laws have significant influences on the development and interpretation of domestic laws. As global cultural flows have increased, it has become difficult to find purely territorialized law devoid of foreign national influences. It is not surprising to see the Americanization of Japanese laws, (1) international law influencing the female genital cutting policies of many African nations, (2) or the Supreme Court of the United States referring to world opinion and the practices of foreign nations in criminal cases. (3) Laws have become deterritorialized. (4)
The diffusion-based legal transplant theory is often used as a framework in attempts to understand how laws exert influence beyond their borders. (5) The theory states that the law of one nation has the ability to spread to and influence the legal system of another country or countries. In a comparative law context, legal transplants are successful when the transplanted laws have the same effect in the recipient country as in the country of origin, thereby leading to convergence.
The legal transplant metaphor is prominent in understandings of the Americanization of legal systems around the world. A wealth of commentaries discuss the strong, worldwide influence of American laws. (6) For example, Anthony Lester argues that we can see the strength of American law with respect to transjudicial communication, and that the U.S. Supreme Court is in a one-way "overseas trade" with the courts of other nations. (7) For Lester, this means that many national courts consider the rulings of the United States with respect to issues on liberty, but that the U.S. Supreme Court does not refer to the judgments of the courts that refer to it. Lester writes:
Currently, there is a vigorous overseas trade in the [United States'] Bill of Rights, in international and constitutional litigation involving norms derived from American constitutional law. …