Comparing judicial practices: Legal knowledge in the gap

Drawing comparisons between the Argentine and the US Supreme Courts appears to be a temptation that socio-legal scholars cannot resist. The role, status, number of clerks in the U.S. Court, its exercise of the writ of certiorari, the control upon its docket, the delivery of oral arguments before the bench, among other practices are usually the features that prompt a comparison between the two institutions. In this comparative schema, the U.S. Court’s practices are assimilated to the Argentine legal regime embedded in the Constitution, which, however has not yet in practice lived up to its theoretical promises. This works to point out the canonical distinction between “law in the books” and “law in action”, that is, to diagnose the existing gap between the legal norm and its realization in local legal practices. In accounting for this gap, the comparative effort draws either on a notion of law as a set of practices and institutions that can be transferred from one jurisdiction to another or on a notion of law as the reflection of a unique socio-cultural order. In either way, what is at the center of the discussion is “the loss of knowledge” in the gap between the two practices: the original and the transferred practice. In this paper, I participate partially in the comparative trend by examining the mode in which the Argentine Court exercises its power to decide what cases to review and what cases to discard, a mechanism that borrows from the US Court’s writ of certiorari. In doing so, I propose to obviate what scholars point as lost in the “translation" of the legal practice of certiorari, that is, the gap between these two practices as they are performed in the American and Argentine settings, and to focus, instead, on the knowledge that this gap elicits.