CONSTITUTIONAL ROUNDTABLE

presents

Professor Arun Kumar Thiruvengadam
National University of Singapore Faculty of Law

The Common Illumination of our House?: Foreign Judicial Decisions and Competing Approaches to Constitutional Adjudication

A study of trans-judicial influence in six jurisdictions

Tuesday, September 25, 2007
12:30 - 2:00
Solarium (Room FA2)

84 Queen's Park

For this presentation, I will discuss the first chapter of my doctoral dissertation, which focuses on the use of foreign cases in domestic constitutional adjudication, a phenomenon that I refer to as trans-judicial influence.  After briefly surveying the historical origins of this practice, and mapping its rapid increase in contemporary times, I will provide a brief overview of the vast literature that has developed around the practice.  My thesis focuses on the practice of trans-judicial influence in six common law jurisdictions: Australia, Canada, India, Singapore, South Africa, and the United States of America.  The central argument of my thesis is that the differences among judges within and across jurisdictions on the practice of trans-judicial influence are best understood as arising from more fundamental disagreements about appropriate approaches to constitutional interpretation and adjudication.  My thesis is based on an analysis of over a hundred cases which reflect the variety of ways by which judges in these six jurisdictions engage with foreign constitutional cases.  Based upon this analysis, I assert that there exist two competing, overarching approaches to constitutional adjudication that determine whether judges will be inclined to embrace or reject foreign judicial decisions, and the methods they employ to do so. I call these two competing approaches the National Formalism model and the Cosmopolitan Pragmatism model.  After setting out the broad features of the two models, I explain how the models, though inspired and influenced by the work of several scholars, are nevertheless distinct from, and have a significantly different emphasis than, existing analyses of the practice of trans-judicial influence.

Arun K. Thiruvengadam, B.A., LL.B (Hons.) (National Law School, Bangalore) 1995, LL.M (National Law School, Bangalore) 2001, LL.M (New York University) 2002, J.S.D. (New York University) 2007, is an Assistant Professor at the Faculty of Law of the National University of Singapore where he currently teaches courses on Singaporean public law and the contemporary Indian legal system.  After completing his undergraduate education in 1995, he served as a law clerk to Chief Justice A.M. Ahmadi at the Supreme Court of India for eighteen months. Between 1997 and 1999, he practiced in the fields of administrative, constitutional and commercial law before the High Court of Delhi and the Supreme Court of India. He has been a Research and Teaching Fellow at the National Law School (1999-2001), as well as at the Global Public Service Law Project at NYU School of Law (2003-05).  His areas of teaching and research interest are: comparative constitutional law and theory; constitutional and administrative law in India; and law and development.  In recent years, he has delivered academic papers at conferences at the Faculty of Law, McGill University, the School of Oriental and African Studies, University of London, and the Faculty of Law, Hong Kong University.

A light lunch will be provided.

For more workshop information, please contact Professor Lorraine Weinrib at l.weinrib@utoronto.ca or Nadia Gulezko at n.gulezko@utoronto.ca.