Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law

Abstract:     
This article proposes a new theory for understanding the emerging transnational judicial dialogue among the world's domestic courts, as well as U.S. courts' potential participation in that dialogue. Existing scholarship has focused almost exclusively on the role of domestic courts in internalizing international legal norms into domestic legal systems. I argue that the relationship between international and domestic legal norms is in fact a co-constitutive, or synergistic, relationship in which domestic courts are becoming active participants in the dynamic process of developing international law. Under this view, transnational judicial dialogue is the engine by which domestic courts collectively engage in the co-constitutive process of creating and shaping international legal norms and, in turn, ensure that those norms shape and inform domestic norms. Domestic courts participating in judicial dialogue thus play an increasingly important role as mediators between the international and domestic legal systems: They function not merely as norm internalizers, but also as creators of international legal norms.

In this article, I explore transnational judicial dialogue in both the death penalty and transnational speech contexts, arguing that such dialogue has had a powerful impact in shaping emerging international legal norms in both contexts. I utilize co-constitutive theory to develop a model for domestic court participation in judicial dialogue. I apply the co-constitutive model to the emerging debate over the proper role of foreign and international law in U.S. courts, discussing in detail the U.S. Supreme Court's recent decisions in Lawrence v. Texas and Roper v. Simmons. I argue that in shaping the debate, U.S. judges and policymakers should take into account the co-constitutive nature of transnational judicial dialogue and the emerging role of the world's domestic courts as key mediators between domestic and international norms.

Accepted Paper Series