Soft Power: Exporting Canadian Jurisprudence

The NYT’s Adam Liptak has an interesting article on the declining influence of American Supreme Court decisions around the world — and the rising influence of the Supreme Court of Canada. From 1996 to 2000, Canadian opinions were cited twice as often as American ones in New Zealand, for example.

(I think there is an interesting story there — due in large part, as the article points out, that many Western democracies adopted their constitutions post-WWII and although they initially drew on the much older American model, they now have more in common with each other than with the American approach to interpretation, which tends to look more inwardly at its own constitutional history and traditions than to “universal” concepts of rights.)

Liptak writes:

“Many legal scholars singled out the Canadian Supreme Court and the Constitutional Court of South Africa as increasingly influential. (…)

“… Frederick Schauer, a law professor at the University of Virginia, wrote in a 2000 essay that the Canadian Supreme Court had been particularly influential because “Canada, unlike the United States, is seen as reflecting an emerging international consensus rather than existing as an outlier.”

“In New Zealand, for instance, Canadian decisions were cited far more often than those of any other nation from 1990 to 2006 in civil rights cases, according to a recent study in The Otago Law Review in Dunedin, New Zealand.

“As Canada’s judges are, by most accounts, the most judicially activist in the common-law world — the most willing to second-guess the decisions of the elected legislatures — reliance on Canadian precedents will worry some and delight others,” the study’s authors wrote.”

It’s interesting that they also label Canadian judges as the “most activist” in the common-law world. I wonder if that has more to do with the judges, or the structure of the constitutions. The Charter has section 1, which, with its language about “reasonable limits” that can be “demonstrably jusified” has always seemed to me as an invitation, if not an outright directive, to  judicial policy-making (for better or for worse). I haven’t examined the constitutions of other common-law countries to know whether or not they contain similarly explicit “balancing clauses”. The U.S. constitution does not have one, although over time judges have read various “balancing tests” into the interpretation of rights.

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