The Inevitable Globalization of Constitutional Law
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CitationMark Tushnet, The Inevitable Globalization of Constitutional Law, 49 Va. J. Int'l L. 985 (2009).
AbstractThis Essay examines the forces pushing the presently varying forms of domestic constitutional law toward each other, and the sources of and forms of resistance to that globalization (or convergence, or harmonization). After a brief introduction sketching claims for the existence of a "post-war paradigm" of domestic constitutional law and competing claims about national exceptionalism, the Essay sketches the "top down" pressures for convergence - judicial networks and actions by transnational institutions, including transnational courts, international financial institutions, and transnational NGOs. It then turns to "bottom up" pressures, from domestic interests supporting local investments by foreign investment and high-level human capital and from lawyers engaged in transnational practice. A discussion of counterpressures from the supply side follows. These counterpressures include resistance from local interests, including authoritarian or semi-authoritarian political elites, and subtle but perhaps deliberate misunderstandings that can arise when superficially similar legal arrangements take on distinctive local meanings. The Essay discusses whether the mechanisms it identifies lead to a race to the "top," to the "bottom," or to some more variegated location. It concludes with a brief treatment of how the globalization of domestic constitutional law can be accommodated to local notions of separation of powers.
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