Waiting for globalization: an empirical study of the McLachlin court's foreign judicial citations.

• Author: McCormick, Peter

A burgeoning literature celebrates the emergence of a global community of judges and a resulting international cross-fertilization of jurisprudence, especially as it bears upon constitutionally entrenched rights. This paper explores the Supreme Court of Canada's citations to judicial authority since 2000, and in more general terms its citations patterns since 1949, to see whether and to what extent this supports the notion of a growing globalization of law. The paper argues that the notion of non-Canadian citation must be disaggregated into three component parts English, American, and everything else before it can usefully be examined, these three exhibiting quite different patterns; and it concludes that in none of them can the "expanding globalization" thesis be sustained. As well, it finds that the practice of the citation of non-Canadian authority is increasingly practiced by a single member of the Court, rather than being diffused across its entire membership. Finally, it looks at the kinds of cases that tend to include non-Canadian citations, and suggests that not only are we still waiting for globalization, but to the extent that we are focusing primarily on rights-based jurisprudence, we may also be looking in the wrong place.

Une litterature abondante encense l'emergence d'une communaute mondiale de juges et d'un enrichissement mutuel international de la jurisprudence, surtout dans la mesure ou cela repose sur des droits enchasses dans la Constitution. Ce texte dresse l'inventaire des references que fait la Cour supreme du Canada la jurisprudence depuis l'an 2000, et de facon plus generale, ses schemas de references depuis 1949, pour voir si et dans quelle mesure ces constats etayent la these d'une mondialisation croissante du droit. Dans ce texte, l'auteur soutient qu'il faut subdiviser la notion de references non canadiennes en trois composantes geographiques, soit l'Angleterre, les Etats-Unis et le reste du monde, si on veut en faire un examen utile, car ces trois e1ements presentent des schemas bien distincts; il conclut qu'aucune de ces composantes ne permet d'etayer la these du phenomene d'une << mondialisation en plein essor >>. I1 constate en outre que la pratique consistant a citer de plus en plus souvent des autorites non canadiennes est en realite le fait d'un seul membre de la Cour et non pas de l'ensemble des juges qui la composent. Enfin, l'auteur examine les types de causes qui renferment des references non canadiennes, et conclut que non seulement il ne s'agirait pas d'une tendance a la mondialisation, mais que dans la mesure ou l'on se concentre essentiellement sur la jurisprudence fondee sur des droits, nous ne regardons sans doute pas au bon endroit.

Table of Contents I. THETHEORY OF STUDYING CITATIONS II. THE DATA-BASE III. THE SUPREME COURT AND JUDICIAL CITATIONS IV. DISAGGREGATING FOREIGN CITATIONS: ENGLISH CASES V. DISAGGREGATING FOREIGN CITATIONS: AMERICAN CASES VI. DISAGGREGATING FOREIGN CITATIONS: "OTHER" CASES VII. WHO USES FOREIGN CITATIONS? VIII. WHEN DOES THE SUPREME COURT USE FOREIGN CITATIONS? IX. WHICH CASES? X. CONCLUSION All over the world, we are told, the judges of national high courts are meeting each other, reading each other, and citing each other more so than ever before. "Like everything else," says Ken Kersch, "constitutional reasoning is going global," (1) and AnneMarie Slaughter says that "judges are globalizing as well." (2) Jenny Martinez writes of the emergence of a "common culture" among judicial bodies around the world, (3) and Claire L'Heureux-Dube describes a dialogue among courts and judges that is promoting a globalization of human rights law and deplores the fact that the Supreme Court of the United States (USSC) under Rehnquist is no longer an active part of this conversation. (4) According to Lefler, "a growing legal dialogue is being created and developed by some of the world's most brilliant legal minds," (5) and Lawrence Friedman undertakes to sketch the basic content of an emerging "global legal order." (6) Hannah Buxbaum registers a rare sour note, wondering if talk of globalization is just another way of talking about lesser jurisdictions conforming "to a standard imposed by the leading powers" in order to obtain the "approval of the states that lead the global community." (7) The Registrar of the Supreme Court of Canada (SCC) includes the "international community of judges" in its list of stakeholders, because of the Court's "active role" as a member of this community. (8)

But what does this globalization look like in practice? Christopher McCrudden has suggested that "the increased citation by judges of 'foreign' legal materials, in particular judicial opinions, from jurisdictions that have no legal authority in the 'receiving' jurisdiction" (9) is one of the significant vectors for this process. This paper will pick up on this idea by investigating first, how often the SCC cites "foreign"--that is to say, non-Canadian--authority; and second, in what context and by what judges this authority is used. Smithey (10) and Roy (11) have looked at the use of foreign law in the more focused context of rights jurisprudence. My purpose is both to examine this phenomenon in terms of the entire Supreme Court caseload, and to do so in direct comparison to the citation of domestic authority--not just how many times but also in what proportion.

The United States has long prided itself on the exportability of its judicial practices and insights (12) but this "supply side" legal globalization has not been matched by "demand side" performance, and in recent years the "foreign law" issue has become very controversial. The major cause ce1ebre has been a decision dealing with the criminal prohibition of homosexual activity, (13) and the American academy has divided itself into hostile camps over the issue. (14) Even the USSC has split on the matter, taking its disagreement public. (15)

The American controversy has had no Canadian counterpart, to such an extent that Anne Warner La Forest describes as "trite" the academic discussion about the impact of international legal norms and comparative law on judicial decisions in this country. (16) American courts and judges may be reluctant to import judicial citations from other countries, and may draw critical fire from academics and politicians alike when they do so, but Canadian courts and judges run no comparable gauntlet.

However--to anticipate my conclusion--it is nonetheless the case that when we apply the McCrudden test and look for the footprints of this increasing global impact on Canadian jurisprudence, we find very little evidence of such impact, such that the citation of foreign judicial decisions comprises a constrained and diminishing share of judicial citations. To the extent that judicial citation is a useful measure of globalization, we are still, to paraphrase the famous title of Samuel Beckett's play, "waiting for globalization," and the sub-title of La Forest's article--"Are We There Yet?"--remains apt.

1. THE THEORY OF STUDYING CITATIONS

   The decision of a common law court does not consist simply of an outcome, but also of a set of reasons that go on (sometimes at considerable length) to explain and justify that outcome. This is because judicial decision-making is seen as "a fundamentally argumentative endeavour, in which individual judges and litigants must engage in generally accessible--and thus democratically accountable--exercises of public reason." (17) A successful judicial decision is one that persuades other courts and judges that the outcome is appropriate and that elements of the reasoned argument provided to support it can, and should, be drawn upon in similar cases. One of the major devices of this persuasion is the judicial citation, which locates the legal issues of the immediate case within a broader framework by linking them to the prior judicial decisions of their own and other courts. Other sources of authoritative information--such as books and legal periodicals--are also used to some extent, but they are much less common and, until relatively recently, (18) they were much less welcome.

   The most obvious type of citation is the hierarchical citation: judges citing prior decisions of their own court (horizontal authority), or of a higher court to which the immediate decision could be appealed (vertical authority). (19) However, the hierarchical aspects of the court system must be paradoxically juxtaposed with the horizontal collegiality of the common law, in which all judges are jointly engaged in the process of finding and explaining the law. Sometimes the Supreme Court criticizes lower court decisions to identify their error, or chooses between the differing positions of the courts in different provinces; but much of the time, the tone is polite, even deferential, and the reasons of "learned colleagues" in lower courts are praised and followed.

   Not all decisions are created equal; some become major contributions to the law--a "leading decision"--that provides a useful reference point with regard to specific issues for considerable periods, with subsequent decisions expanding or refining or cabining its ideas. Any experienced practitioner will be able to identify the clusters of cases centered on a leading decision that deal with specific issues or questions; these clusters are the collective product of the judicial system, shared (and cited) similarly by everyone. The point is that citations to the decisions of Canadian courts are drawn from an established universe of domestic legal discourse; each citation is a content-filled place-holder for specific aspects of the contemporary meaning of the law, conveying known and shared legal information. Domestic citation takes place within an established context and a settled frame of conventions and understandings. What, then, of citations of the judicial decisions of other countries?

   These are directed by quite a...