Foreign law in domestic courts: Different uses, different implications

One can be forgiven for wondering if the debate about references to foreign law in U.S. court opinions is much ado about nothing. In none of the cases that sparked the debate - Atkins v. Virginia, Lawrence v. Texas, and Roper v. Simmons - did the U.S. Supreme Court treat foreign law as binding law that could override U.S. law. Nor, as two recent articles empirically demonstrate, is the use of foreign law by U.S. courts anything new. For courts in other countries, the use of foreign law is "decidedly commonplace." Ye t "[t]here is little evidence to suggest parallel mobilization in opposition to foreign citations by courts abroad" - which suggests that the controversy in the United States indeed might be disproportionate to the problems posed by comparativism in judicial decision making. As Noga Morag-Levine states, "Supreme Court opinions are replete with references to extra-legal sources such as philosophical treatises and social science research. Why single out foreign case law as deserving of special condemnation?" After a careful analysis of the debate, Mark Tushnet concludes that what really is motivating critics of foreign law in U.S. courts is concern about the appropriate scope of judicial power, not foreign law per se. Nevertheless, the question of foreign law in domestic courts is an important one. Skeptics correctly warn that the use of foreign law - at least in the context of constitutional interpretation - raises serious issues of constitutional theory and comparative methodology. Those more sympathetic to the use of foreign law not only disagree with skeptics' arguments that there is no "constitutional license" to use foreign law, but also claim that a greater willingness of domestic courts to use foreign law can improve the quality of constitutional decision making. The focus of existing research and commentary on both sides of this debate is on the constitutional issues associated with references to foreign law in U.S. court opinions and, more generally, on the important normative concerns about whether and how domestic courts should use foreign law. This work, however, focuses little attention on the actual consequences of domestic court references to foreign law and therefore eventually relies on untested empirical assumptions about what those consequences might be. Nonconsequentialist reasons to favor or disfavor foreign law in domestic courts exist, of course. Ye t a well-informed, normative dialogue must be attentive to consequences, at least if it is to extend beyond the narrow confines of more formal variants of constitutional theory. The use of foreign law in domestic courts also raises interesting questions of positive theory - particularly about the relationship between different uses of foreign law and the cross-border migration of legal norms that so far are unexplored. For these reasons, this chapter proposes a social science approach that focuses on the empirical implications of foreign law in domestic courts. Unfortunately, the existing literature does not provide the conceptual foundations for exploring these implications. Scholars generally appreciate that domestic courts can use foreign law in different ways and that these differences are analytically significant, but the result has been an overabundance of typologies of different uses and a lack of conceptual clarity. Therefore, in the main part of this chapter, I will attempt to take a small conceptual step forward by consolidating into a single, manageable typology the many different uses of foreign law in domestic courts that already have been identified by scholars. No single typology can be useful for all purposes, and ultimately an empirical project motivated by a particular theory calls for concepts that are motivated by the same theory. Thus the goal is modest: to provide a language for a preliminary exploration of the empirical implications of different uses of foreign law that may be useful to a wide range of scholars. Next, I will build on the typology by considering the consequences of different uses of foreign law in domestic courts and the role of domestic courts as agents in processes of norm internalization and transnational policy diffusion. In particular, I will use the typology to examine the claim made by some critics that foreign law references in U.S. court opinions lead to the internalization of non-U.S. norms into U.S. society by changing domestic law or policy. Finally, I will suggest several avenues for future research on foreign law in domestic courts and domestic courts as institutional pathways for norm internalization. The central message is simple: Different uses of foreign law have different implications for the cross-border migration of legal norms, and both normative theory and positive theory should take these differences into account . © 2010 State University of New York. All rights reserved. 1 2 3 4 5 6 7 8 9 10 11 12 13 1

Private-public interaction in global governance: The case of transnational commercial arbitration

Scholars of international relations and global governance are increasingly interested in the transnational commercial arbitration system. So far, they have tended to characterize the system as a form of private global governance. However, using a combination of empirical and legal analysis, this article draws attention to the critical role of the state in the transnational commercial arbitration system, and shows that both rule-making and enforcement in the system depend largely on interactions between private and public actors. By treating arbitration as a form of private governance, scholars run the risk of obscuring these interactions and hindering their understanding of how transnational economic activity is governed. This article therefore argues for a modest reorientation of global governance scholarship on transnational commercial arbitration in a direction that focuses more closely on private-public interaction. More broadly, this article suggests that understanding interactions between private and public actors is a key to understanding global governance in general, and it raises doubts about the analytical desirability of a sharp distinction between private and public forms of global governance. © 2010 Berkeley Electronic Press. All rights reserved

Thinking Beyond the Domestic-International Divide: Toward a Unified Concept of Public Law

Legal scholars and political scientists typically study domestic public law and international public law as separate subjects, treating them as essentially different phenomena. This separate treatment has been justified on the grounds that the two realms of public law have important and intrinsic structural and functional differences: domestic law is a hierarchical system with centralized enforcement whose primary function is to constrain behavior, whereas international law is an anarchic system relying on decentralized enforcement or self-help that primarily performs functions other than constraint. This article reassesses that understanding. It argues that domestic public law and international public law are in fact fundamentally similar in terms of doctrine and structure and, from the perspective of positive political theory, the two realms of public law function in similar ways. The article therefore proposes a unified concept of public law as an alternative to the traditional structural/functional distinction, and demonstrates the theoretical, pedagogical and policy benefits of using the unified concept to think across the domestic-international divide in the study of public law

A Rational Design Theory of Transgovernmentalism: The Case of E.U.-U.S. Merger Review Cooperation

There are two basic forms of legal and regulatory cooperation in world politics: interstate and transgovernmental. The former involves states behaving as unitary actors, facing the world as integrated units and each speaking with one voice in its interactions with other unitary states. The latter occurs when cross-border cooperation takes place directly between governmental subunits of different states, such as courts and regulatory agencies. But why is legal and regulatory cooperation among some states and in some issue areas principally interstate, while among other states and in other issue areas it is primarily transgovernmental? The principal goal of this article is to contribute to the scholarship on transgovernmental legal and regulatory networks and transgovernmentalism in general by proposing some possible answers to this question. To accomplish this, the article uses two analytical tools from the discipline of political science: the concept of transgovernmental relations and the theory of rational institutional design. It applies these tools to develop a rational design theory of transgovernmentalism aimed at explaining the conditions under which legal and regulatory cooperation is more likely to be transgovernmental versus interstate. The article probes the theory\u27s plausibility using a case study of E.U.-U.S. merger review cooperation