Transnational Guidance in Terrorism Cases

Abstract:     
This article advocates using transnational materials as guides to adjudicating federal terrorism cases. Reacting to United States Supreme Court decisions using comparative law sources, Congress has sought to dramatically curtail federal court freedom to consider materials from other countries, from international organizations, and other international sources. This article argues that this approach fails to recognize that careful consideration of international and comparative laws is a rational adaptation to the social and global realities of transnational terrorism. The article outlines four main reasons that federal courts should use transnational materials when adjudicating federal terrorism cases: (1) the practice serves common sense; (2) the practice reflects methodologically good judging; (3) the practice serves the United States constitutional structure; and (4) the practice promotes the rule of law and world governance.

Number of Pages in PDF File: 32

Keywords: terrorism, transnational norms, comparative law, constitutional law, national security, foreign relations law, international law

JEL Classification: K10, K14, K33, K42

Accepted Paper Series