15 Colum. J. Eur. L. 477 (2009)

Daphne Barak-Erez. Visiting Professor, Columbia Law School (Fall 2008); Professor of Law, Stewart and Judy Colton Chair of Law and Security, Faculty of Law, Tel-Aviv University. I thank Michael Birnhack, Yishai Blank, Klaus Hopt, Roy Kreitner, and Hedi Viterbo for their comments. I also thank Jonathan Zell for his wonderful research assistance, Mathilde Cohen and the staff of the Columbia Journal of European Law for their helpful advice, and Batya Stein for the editing. The research was supported by the Cegla Center for the Interdisciplinary Research of the Law, Tel-Aviv University. Earlier versions of the article were presented at the Convergence and Divergence of Law: German and Israeli Perspectives conference, Tel-Aviv University (in cooperation with the Max Planck Institute for Comparative and International Private Law, Hamburg), and at workshops at Fordham Law School, Connecticut Law School and Virginia Law School.

This Article discusses the practice of comparative law from an institutional perspective—rather than asking whether importing doctrines and concepts from foreign law is a desirable practice, it asks how they are imported, why, and by whom. In this context, it also calls for a more nuanced analysis of the controversy over the use of comparative law, since the forms and the implications of using comparative law change according to the institution involved in the practice. The Article begins by referring to the United States Supreme Court case Eldred v. Ashcroft, which shows that judges may hail or question the legislature’s use of comparative law, just as the judges’ use of comparative law may be a source of controversy in other contexts. After closely examining the use of comparative law by various institutional players—Constitution drafters, legislatures, courts, and administrators—it calls for a reconsideration of the controversy over the uses of comparative law through the opening of a broader debate that would also include the institutional dimension.