Should courts fear transnational engagement?

Author:Frishman, Olga
 
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Abstract

Judicial citation of foreign law worries many people, including justices of the U.S. Supreme Court, politicians, and legal academics. The critics in the United States argue that judges "cherry-pick" foreign citations and use them to import foreign norms that do not accord with the Constitution or the will of the American people. This Article argues, based on insights from organizational theory, that the critics overlook another, much greater, concern: the danger does not come from citing or looking at foreign law, but rather, from other types of interaction, such as meetings at judicial organizations, judicial delegations, or judicial conferences. The result of these transnational judicial interactions will be convergence on certain practices of courts, especially in the way courts understand their national roles, the ways they present themselves to their national audiences, and the methods they use to do so. The adoption of these similar practices across national borders is likely to distance the courts from their national audiences and cause courts to lose their national support.

Table of Contents I. Introduction II. Transnational Judicial Dialogue III. Transnational Organizational Field of Courts: Theoretical Framework IV. Structuration of the Transnational Organizational Field of Courts A. Increase in the Extent of Interaction among Organizations in the Field B. Emergence of a Sharply Defined Inter organizational Structure of Domination and Pattern of Coalition C. Increase in the Information Load with which Organizations in the Field Must Contend D. Development of a Mutual Awareness among Participants in a Set of Organizations that they are Involved in a Common Enterprise E. Structuration of the Transnational Organizational Field of Courts: Conclusion V. Implication for Courts: Institutional Isomorphism A. Institutional Isomorphism: Theoretical Framework B. Transnational Institutional Isomorphism of Courts VI. A Reason to Worry: Normative Implications of Institutional Isomorphism for Courts VII. Conclusion I. Introduction

Courts and justices around the world are involved in transnational interactions with their foreign colleagues. They meet with each other, send e-mails, and cite each other's decisions. Many scholars, politicians, and justices criticize this phenomenon. The critics argue that it is not useful and not legitimate for courts to use foreign law. The main arguments focus on the cherry-picking of foreign legal sources that courts refer to and the court's use of those sources to import legal norms that do not accord with the will of the people. The adoption of such norms is therefore claimed to be non-democratic and disruptive to the national legal system. This Article uses concepts from organizational theory and argues that courts' transnational engagement raises other and more pressing concerns.

The Article focuses on supreme, constitutional, and highest courts and argues that the increasing communication between judges in different national, regional, and international jurisdictions--what is often called the transnational judicial dialogue--may be expected to influence these courts. Accordingly, the Article contends that these interactions create special relationships between courts. In terms of organizational theory, the courts have become a transnational organizational field. Thus, they see each other as fulfilling similar roles in their jurisdictions and thus as their reference group (i.e., the group to which they should compare themselves).

As a result of the emergence of this organizational field, certain "field level" processes affect the courts. This Article will focus on one of those processes--the process of institutional isomorphism through which courts become similar (and sometimes different) over time. The focus here is on specific and important characteristics of the courts--the ways courts understand their national roles (their identities), the ways courts want others to understand their roles (their intended images), and the means courts use to communicate these messages. This Article will argue that due to transnational influence courts may be expected to act on and look at these issues in a similar way.

This convergence, it will be claimed, is likely to have negative implications for courts. It is expected to distance them from at least some of their national audiences. To clarify, courts' audiences, as referred to in this Article, may be any social group or institution that is directly or indirectly affected by the courts' decisions. For example, a court's audience may be the legislative or the executive branch, the public, a racial or socioeconomic group, a specific organization, or the legal academe. (1) Courts are also likely to have different relationships with their different audiences. The result of the rift between courts and their audiences, at least between courts and some of their audiences, is expected to decrease courts' social legitimacy. Thus, because courts have neither purses nor swords, (2) they are likely to experience more backlashes, and as a result, the chance that their unpopular decisions will be enforced will decrease.

The Article unfolds as follows: Part II addresses the existing literature on transnational judicial interactions. Part III discusses the theory behind the concept of an organizational field. Part IV provides evidence that a transnational organizational field of courts is emerging. Part V turns to discussing the process of institutional isomorphism. It begins by providing the theoretical background to the concept and then turns to applying this theory to courts. Part VI discusses the normative concerns that arise from institutional isomorphism among courts. Part VII concludes and ties the discussion here to other concerns regarding the phenomenon of transnational judicial dialogue that have already been raised in the literature.

  1. Transnational Judicial Dialogue

    Transnational judicial dialogue is the most common manifestation of the globalization of courts, in the framework of which judges and courts as institutions interact with each other above, below, and through borders. (3) For example, national judges meet or cite judges from another national jurisdiction, regional judges, or international judges. This phenomenon is currently at the forefront of current discussions and controversies. (4)The idea that judges from different countries engage in a conversation with each other--through meetings or cross citation--is an occurrence that intrigues many observers. (5)

    In the United States, some scholars, politicians, and judges publicly object to cross citation of foreign law. (6) Their critique focuses on three main problems regarding the use of foreign law. The first concerns the relevancy of foreign law. Foreign law should not be consulted, so it is claimed, because the differences between the countries and their legal systems make their experiences irrelevant. Second, some object to the use of foreign citations because it is open to manipulation, and these individuals claim that judges merely pick foreign examples that fit their objectives. Third, it is argued that the use of foreign law is not legitimate because it expands judicial discretion and in fact constitutes the importation of legal norms that were not enacted by the national democratic institutions. (7) Others present arguments supporting the use of foreign law and explain why it is important for judges to engage with each other. (8) Nevertheless, to date, scholars have not explored or theorized the effects or the desirability of such dialogue.

    The use of the term "transnational judicial dialogue" by scholars usually refers to two things: (1) direct interaction between judges, and (2) citation of foreign opinions in national court decisions. Direct interaction can be achieved through face-to-face communication as well as through Information Technology (IT) facilities. (9) Face-to-face communication can occur in different settings. The most common way for judges to meet is at conferences or in judicial delegations from one national court to another. In those situations, judges have an opportunity to talk to each other about their judicial work and their judicial opinions. The other mode of judicial dialogue is the citation of foreign opinions by national judges. (10) Judges around the world sometimes cite foreign decisions when those decisions are mandatory--for example, when applying an international rule or deciding in a conflict of laws case. At other times, judges are not obliged to cite the foreign cases, but nonetheless choose to do so. This can happen when the citations are advisable, and judges are explicitly allowed to look at foreign law, but not obliged to do so. It can also happen when the citations are discretionary, when there are no instructions regarding the use of foreign law, and when the judges choose to do so because it is useful. (11)

    A few scholars have tried to conceptualize and theorize the transnational judicial dialogue. These conceptualizations are important for understanding the implications of the transnational interaction for both courts and national legal systems. One theory sees the courts as belonging to a single global community, (12) one that is possibly an epistemic community. (13) According to this view, courts, or at least some of them, constitute a group that has common goals and acts together to achieve those goals. In many cases, this community can be conceptualized as a network, (14) and therefore the relationships between courts should be analyzed through the analytical tools used to understand networks. These analytical tools provide a map of courts' interactions, focusing on why and how cooperation and interaction between courts take place. (15) Nevertheless, the current approaches are not fully developed and provide only a starting point for analyzing the phenomenon of transnational judicial dialogue and its...

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