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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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