The State of Comparative Constitutional Law (with a Note on International Law)

As Roger said in his introduction, and as I mentioned, much of my scholarship focuses on this field of comparative constitutional law. By comparative constitutional law, of course, I mean the domestic constitutional law of other countries (this might perhaps also include the constitutional law produced by more transnational institutions like the European Court of Human Rights, although this is debatable). The more I talk to people outside of this field about this field of comparative constitutional law—such as when I went on the academic job market—the more I hear that this field is exploding and that there is much interest in this field.

My first reaction to these comments is always to note that the field is reemerging, rather than being created for the first time. Comparative constitutional law—or more precisely perhaps, comparative constitutional politics—was a core part of the writings of the early American political scientists. When John Burgess created the Political Science Department at Columbia University, and when he was involved in creating modern American political science, much of his focus was on comparative constitutional politics. This should not be surprising, given the focus of the time on the state as an important variable in explaining political events (think of Woodrow Wilson’s tract on congressional government, perhaps the first substantial modern tract of comparative constitutional theory). Likewise, at the time modern American law schools were created at the end of the nineteenth century and in the immediate aftermath of that, comparative constitutional law was a real part of American legal education. Roscoe Pound and James Bradley Thayer wrote about it; many law schools required courses in similar fields.

But my second reaction, which might be of even greater interest to readers of this blog, is that the field of international law (or perhaps just international public law) is exploding, and the field of comparative constitutional law (or perhaps just comparative law more generally), if it is growing at all, has seen growth that is miniscule compared to the growth of international law. Some of my reasons for believing this are anecdotal and unsystematic, and some are based on more comprehensive available information.

It seems that interest in international law, in law schools and in the world of legal practice, has grown quite a bit. There are influential blogs like Opinio Juris and others that attract wide readerships inside and outside of the legal academy. The number of international law classes being offered by law schools has risen quite substantially—and this is particularly true of the number of international law clinics, which many schools now seem to operate. There are many international law scholars of note, and at this point every law school probably wants at least one if not more scholars writing in the field, no matter their ranking in the law school hierarchy. There are international law clerkships, like positions at The Hague and elsewhere. There are competitive and interesting international law jobs, like working in the Legal Advisor’s Office at the State Department.

This all seemed to contribute to a sense I have had, since my days back in law school, that international law (much more so international public law, or for that matter even just international human rights) is a major area of activity. It seemed in law school that the intellectually and professionally energetic students congregated into two large camps (and there were other, perhaps smaller, camps, to be sure); there were the constitutional law junkies and the international human rights junkies. The constitutional law junkies had existed in law schools since perhaps the aftermath of Brown. They took the constitutional law classes with the famous professors (the Bickels and the Borks and the Griswolds of the law school world), wanted to do clerkships, and these days go to events hosted by groups such as the Federalist Society and the American Constitution Society. But there were also the international human rights junkies when I was in law school. They wanted to do summer positions in The Hague; they worked in the international human rights clinics; they worked on the international law journals, they took the international law classes with the famous professors (the Goldsmiths and the Kohs of the law school world). Much information we have seems to suggest that, as I said, the phenomenon of this social group of constitutional law junkies is not new, dating back to impact litigation and the days of the Warren Court; the phenomenon of the international law junkies is at least somewhat new.

My sense of things is that there is no similar, or at least equivalent, increase in the centrality of comparative law, even of comparative constitutional law or comparative public law. There are few blogs or sources of information on the Internet about comparative legal developments. I read foreign newspapers and subscribe to e-mail notification lists, but short of that would have no idea about major cases or news from other countries (even about countries like the UK or Germany or South Africa which seem to be more connected to the American public law system). There are more comparative law classes, but not many more. Most law schools—or at least this is my sense—do not offer anything beyond the introductory comparative law class (and even that class is most of the time taught by a foreign visitor or some non-tenure-track member of the faculty). GW did not offer comparative constitutional law, at least recently, before I started teaching there.

There are more comparative law scholars of note, but not many more. Comparative constitutional law is a growing field, but still so much of the scholarship is about whether or not American courts should reference the constitutional law of other countries (a question which is just as much, if not more, about American constitutional interpretation as it is about comparative constitutional law). Yale has a few prominent comparative public law scholars, in comparative constitutional law and comparative public law or comparative law more generally (Mirjan Damaska, John Langbein, Alec Stone Sweet, James Whitman). A few other schools have a number of important people writing in these areas (e.g. Columbua, UCLA).

But, by and large, I think it is safe to say that most law schools—indeed, many even in the top 25—do not have a single person writing about comparative law. Comparative legal scholarship is in many ways a luxury good, limited to a few of the top-ranked law schools. I have a tough time during academic presentations convincing American scholars that comparative constitutional law is a serious and important area of study, and isn’t just another way of answering questions like “what should the Supreme Court have done differently in Roe”? While international law is a very popular listed area of interest now among those on the teaching market, my sense is that comparative law is not. There are some comparative law clerkships (some students clerk on the South African Constitutional Court or the Israeli Supreme Court, for instance) and some comparative law jobs, but not many.

The questions about why there is this difference between what has happened to international law and what has happened to comparative law are interesting, and beyond the scope of this post at least. Is it because so much of the debate about international law now is about what it means in terms of incorporation or changes within the American legal system, while people still think about comparative law as a field that does not change or affect what we do in the American legal system? Is it because international law materials are more readily available?

In later posts, I will talk about what can be done to change this state of affairs, and to institutionalize comparative law (particularly comparative constitutional law) as a more significant part of the American legal world, as I believe it should be. I will also talk about the more tricky question of whether or not comparative constitutional law is even an academic field of its own, or whether its existence and growth are parasitic on developments in social science and legal scholarship more generally.