Brown Abroad: An Empirical Analysis of Foreign Judicial Citation and the Metaphor of Cosmopolitan Conversation
By Sheldon Bernard Lyke
This Article generates a data set (twelve courts and thirty-two decisions) of foreign judicial citations to the landmark U.S. Supreme Court decision in Brown v. Board of Education. The purpose of this Article is to learn what happens when a case is deterritorialized and reconstituted in a different national scenario, and to conceptualize how courts around the world use foreign authority. Analysis reveals that few foreign courts used Brown in decisions involving education or race and ethnicity. Foreign courts used the case as a form of factual evidence, as a guide in understanding the proper role of a court with respect to decision making, and as a source of substantive law in discussions on equal protection. Specifically, the article illustrates the ways in which justices on both the New Zealand Court of Appeal and the Constitutional Court of South Africa used Brown in discussions of same-sex marriage. Although central to comparative law, the legal transplant metaphor does not adequately explain the transnational use of Brown. By incorporating sociological theories of diffusion and innovation, the article attempts to reconcile some of the flaws of the transplant metaphor and argue that conceptualizing judiciaries’ use of foreign law as a cosmopolitan conversation is more appropriate. Cosmopolitan conversation has led to forms of legal learning and innovation when courts have cited, interpreted, and infused their own meaning into the Brown decision.
*Article published in the Vanderbilt Journal of Transnational Law, with support from the Williams Institute. Sheldon Bernard Lyke was the 2011 Williams Institute Dorr Legg Law and Policy Fellow.