Comparative judicial federalism

Abstract

Abstract How does judicial federalism affect an apex court’s articulation of constitutional rights? Despite the growth of scholarship on comparative judicial review, federalism, and rights, comparative judicial federalism is underexplored. Building on an emerging literature, this article tentatively suggests that the authoritative declaration of constitutional rights may vary with a country’s particular species of judicial federalism. It first develops a qualitative framework for comparative judicial federalism, that is, the relationship between local (state) and central (federal) courts. The framework is structured around judicial federalism’s three dimensions: institutional, jurisdictional, and jurisprudential. After justifying these three dimensions, the article deploys them to compare Australia and the United States. It posits that in one context—federal free-speech limits on the common law—Australia’s purportedly modest implied freedom of political communication could resemble the powerful Free Speech Clause of the First Amendment. The relative degree of integration of central and local courts may affect the scope of the federal free-expression norm as articulated by the apex court.