In recent years, hostility against judges who invoke foreign law in constitutional cases has escalated dramatically. Comparative approaches are presumed to present a significant threat to democratic accountability. In addition, judges have been faulted for failing to articulate objective criteria for selecting foreign authorities. The issue, however, is more nuanced than critics tend to acknowledge, and many systemic errors can be corrected without devising a novel theory of constitutional interpretation.
In this Comment, I identify three comparative approaches that are capable, in theory, of eluding criticism on democratic-accountability grounds. I then compare the methods for selecting authorities under each of the three approaches to demonstrate that, in practice, comparative law conventions are no more inherently dubious than those employed under traditional, even wholly domestic, interpretive methods.
Implementing the neutral criteria suggested herein will operate to curb judicial discretion and impose limits on the permissible range of persuasive authority. Though I ultimately advance constraints on the application of foreign sources, my intention is not to deter examination of such material, but rather, to illustrate how foreign authorities can be selected impartially so as to engender less criticism.