Survey Study of 43 Supreme Court Common Law Judges on the Use of Foreign Law in Constitutional Rights Cases (ICPSR 29121)

Published: Aug 31, 2010

Principal Investigator(s):
Brian Flanagan, National University of Ireland-Maynooth; Sinead Ahern, University of Limerick

Version V1

This is a survey study of 43 judges from the British House of Lords, the Caribbean Court of Justice, the High Court of Australia, and the Supreme Courts of Ireland, India, Israel, South Africa, Canada, New Zealand, and the United States on the use of foreign law in constitutional rights cases. As the focus of attempts to both explain and justify the use of foreign law in constitutional discourse, the attitudes of apex judges are clearly at issue. The study aims to shed light on how common law judges view foreign law as a source of argument in constitutional rights matters, and how they "see" transnational sources. The data provide the basis for preliminary testing of globalist theory (associated with Anne-Marie Slaughter, Vicki Jackson and Chris McCrudden). More generally, they lend a practical insight to jurisprudential debates invoking the nature of judicial reasoning in appellate courts. We find that the conception of judges citing foreign law as a source of persuasive authority is of limited application. Citational opportunism and the aspiration to membership of an emerging international "guild" appear to be equally important strands in judicial attitudes towards foreign law. We argue that their presence is at odds with Ronald Dworkin's theory of legal objectivity, and revealed in a manner meeting his own methodological standard for attitudinal research.

Flanagan, Brian, and Ahern, Sinead. Survey Study of 43 Supreme Court Common Law Judges on the Use of Foreign Law in Constitutional Rights Cases. Ann Arbor, MI: Inter-university Consortium for Political and Social Research [distributor], 2010-08-31.

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University College Dublin. Ad Astra Research Scholarship

2005-12 -- 2006-04

Approximately 43 supreme court common law judges.

survey data

A 95 percent confidence interval was selected. As data were of a nominal nature, Pearson Chi squared analyses were employed in order to determine relationships between the variables.




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