Foreign Law in Domestic Courts: Different Uses, Different Implications

IN: Globalizing Justice: Critical Perspectives on Transnational Law and Cross-Border Migration of Legal Norms. Chapter 3, pp.45-63. Eds. Donald W. Jackson, Michael C. Tolley, and Mary L. Volcansek. State University of New York Press, 2010

UC Irvine School of Law Research Paper No. 2012-40

11 Pages Posted: 23 Apr 2012  

Christopher A. Whytock

University of California, Irvine, School of Law

Date Written: ,

Abstract

This book chapter proposes a typology of the different ways that domestic courts may use foreign law — as binding law, as a nonbinding norm, as an interpretive aid, as a basis for functional comparison, and as factual information — and it explores the implications of these different uses for judicial internalization of external norms. The chapter argues that domestic courts play a key role in transnational processes of norm internalization and diffusion, and it draws on political science scholarship to develop hypotheses about how different uses of foreign law by domestic courts affect these processes.

Keywords: Foreign Law, Comparative Law, Comparative Constitutional Law, Transnational Law, Functionalism, Courts, Supreme Court, Norms, Norm Internalization, Conflict of Laws, Choice of Law

Suggested Citation

Whytock, Christopher A., Foreign Law in Domestic Courts: Different Uses, Different Implications (,). IN: Globalizing Justice: Critical Perspectives on Transnational Law and Cross-Border Migration of Legal Norms. Chapter 3, pp.45-63. Eds. Donald W. Jackson, Michael C. Tolley, and Mary L. Volcansek. State University of New York Press, 2010; UC Irvine School of Law Research Paper No. 2012-40. Available at SSRN: https://ssrn.com/abstract=2045119

Christopher A. Whytock (Contact Author)

University of California, Irvine, School of Law ( email )

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HOME PAGE: http://www.law.uci.edu

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