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11 U. Pa. Asian L. Rev. 294 (2015-2016)
An Inter-Court Struggle for Judicial Supremacy

handle is hein.journals/etalr11 and id is 302 raw text is: AN INTER-COURT STRUGGLE FOR JUDICIAL SUPREMACY Chien-Chih Lin* & Ching-Fang Hsu** Skirmishes between constitutional courts and supreme courts have occurred not only in established democracies, but also in nascent democracies and semi-authoritarian regimes. Yet this situation has not received enough scholarly attention, despite the widespread conflicts among domestic apex courts. Most literature simply focuses on a single country without systematically and comprehensively spelling out the contributing factors. Employing the analytical framework of the game of chicken, this paper aims to fill this academic lacuna by suggesting that: 1) information asymmetry between apex courts is the key cause of inter-courts conflicts, and 2) constitutional courts, isolated from the judiciary, require an alliance with other actors to win a war of courts. The conflicts between the Constitutional Court and the Supreme Court in Taiwan vividly demonstrate these points. Based on the thesis, this Article argues that an inter-court conflict may reshape the power equilibrium between domestic apex courts, between the judiciary and the elected branches, and may be beneficial to society in some circumstances. Introduction Since the end of World War II, constitutional courts have mushroomed around the globe,I and judicial review has been widely regarded as a panacea to counter the tyranny of the majority that leads * Post-Doctoral Researcher, Institutum lurisprudentiae, Academia Sinica, Taiwan. Email: chienchihlinggate.sinica.edu.tw. **Ph.D. student, University of Toronto. Email: c n -an hsu)mai1.uioronto.ca. We would like to thank Professor Tom Ginsburg, Professor Ran Hirschl, Professor Saul Levmore, Professor Peter Solomon Jr., Professor Eric Posner and Kan-Hsueh Chiang for their comments and suggestions on the draft of this article. Of course, all mistakes are ours. 1 For arguments that justify the establishment of a constitutional court, see Victor Ferreres Comella, The Rise ofSpecialized Constitutional Courts, in COMPARATIVE CONSTITUTIONAL LAW 265, 266-71 (Tom Ginsburg & Rosalind Dixon eds., 2011).

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