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Lee Epstein
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Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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CONSTITUTIONAL BORROWING AND NONBORROWING
Published in 2003. In I•CON: International Journal of Constitutional Law 1: 196-223

Lee Epstein
Jack Knight

The introduction is below.
Click here for the article (.pdf); click here for the data.

Introduction

Constitutional borrowing comes in different forms. Judges may consider decisions reached by their counterparts in other societies when resolving disputes; constitutional framers may look abroad when considering what provisions to etch into their documents; even citizens may be attentive to practices elsewhere when formulating opinions over constitutional change.

Perhaps not so surprisingly, the scholarly literature reflects this variation. Numerous studies have focused on borrowing as it pertains to constitutional design; others have set their sights on the export and import of decisions (or their underlying rationale) rendered by courts, or what some scholars and judges are now deeming, more broadly, an international judicial "dialogue" or "conversation." A handful are empirical efforts, not so much geared at explaining borrowings but rather at describing when and where they have occurred. Others are largely or mostly normative in nature, asking whether courts should canvass international and comparative law when interpreting their society's constitutional documents, how to judge "when a borrowing or importation is successful," or "whether American democracy be exported to [particular] societies," among others. The bulk of essays, though, are a combination, invoking empirical arguments to shore up their normative points—such as offering the positive empirical implications of adopting their preferred position (e.g., either for or against borrowing).

While we appreciate all these distinctions, in our view they under appreciate a key point; namely, that constitutional borrowing is a case of a larger phenomenon: institutional design. When constitutional courts choose (or do not chose) to engage in dialogues with other tribunals, or when the framers of constitutions borrow (or not) provisions from documents elsewhere, they are to be sure engaging (or not) in constitutional borrowing, but their task—to design institutions to govern their societies—is far larger than most scholars have taken that term to mean.

We understand why this point remains underdeveloped in existing literature. The problem, as our emphasis above on or not implies, is that many studies of constitutional borrowing (especially the great many that rely on, in part or in full, empirical evidence) select on the dependent variable, that is, they typically focus on when the phenomenon occurs—when and why society B borrows a formal constitutional provision, a court precedent, and so on from society A—and ignore when and why it does not occur—when and why society B does not borrow a formal constitutional provision, a court precedent, and so on from society A.

This practice is problematic for many reasons but most relevant here is that it moves us away from a crucial feature of the phenomenon we are seeking to describe or explain: that societies are making (or have made) choices over whether to borrow (or not borrow) institutions from another or other societies. They are not merely, reflexively, or always borrowing, as the practice of selecting on the dependent variable might lead us to conclude; they are rather engaged in the task of designing institutions. Sometimes, in undertaking that task, they borrow from society B; sometimes, they borrow from society C; sometimes they do not borrow at all.

The formal institutions governing the selection of constitutional court judges in the former republics of the Soviet Union underscore this point with some force. While these republics devised their institutions at roughly the same time, shared a common political tradition, and are geographically close—all factors scholars say induce borrowing— they took at least five different approaches to judicial selection: (1) executive/legislative parity (with each able to appoint a specified number of judges); (2) executive/judicial (along with, in some instances, legislative) parity; (3) executive nomination (usually) with legislative confirmation; (4) executive/legislative/judicial parity in nomination with parliamentary confirmation; and (5) judicial appointment.

Some of these choices reflect practices in Western Europe; others come from the United States; and still a third set seem quite unique. Taken collectively, though, they raise many questions: Why did states borrow from one society but not another or each other? Why, in some instances, did borrowing not occur? Why did the former republics, to put it more broadly, make the distinct institutional choices that they did?

Addressing these sorts of questions, as even this brief introduction makes clear, requires us to deselect on the dependent variable, to move beyond simple accountings of what society B borrowed from society A, and when. It forces us, first, to think theoretically about matters of institutional design, about the circumstances that lead societies to borrow and not borrow; and, second, to assess the implications of the theory against evidence drawn from the world.

It is these twin tasks that we take up in this article. On our theoretical account, decisions over whether to borrow or not, and from where—at least with regard to mechanisms governing the selection and retention of justices serving on (constitutional) courts—are decisions about institutional design. Such decisions, as we suggest above, are not a function of societies always, merely, or reflexively borrowing from one another. Rather we must analyze borrowing—institutional choices, really—as a bargaining process among relevant political actors, with their decisions reflecting their relative influence, preferences, and beliefs at the moment when the new institution is introduced, along with (and critically so) their level of uncertainty about future political circumstances.

Among the interesting predictions our account yields is the following, which centers on the relationship between uncertainty and the institutional preferences of the dominant political actors in a society: As uncertainty about future political prospects increases, preferences for institutional rules governing judicial selection that lower the opportunity costs of justices (the political and other costs justices may incur when they act sincerely) also increase. In other words, political uncertainty will lead dominant political actors to prefer selection and retention mechanisms that many scholars associate with judicial independence (e.g., life tenure or long terms of office). Under certain conditions, the converse also holds: As uncertainty decreases, dominant political actors may be more inclined to create institutions that increase opportunity costs. This follows from the intuition that designers who believe they will remain in power will hope to inculcate a beholden judiciary.

In the second part of the article we explore these predictions with observations gathered from the U.S. states and the former republics of the Soviet Unions. While our analyses are far from comprehensive, they are suggestive: Just as our account anticipates, choices over institutions are not merely reflexive but reflect the preferences and beliefs of the actors making the choices.