Is Resistance to Foreign Law Rooted in Racism?
15 Pages Posted: 28 Aug 2016
Date Written: August 1, 2014
The goal of this Essay is to situate transjudicial communications and the backlash against foreign legal citations into a conversation about race and racism. The goal is not to try to prove that opposition to foreign law is racist. That claim is better left for future research. Rather, at a minimum, the resistance to foreign and international law has correlations to racism and is grounded in a racial narrative.
In discussing racism and transjudicial communications, this Essay begins with a working definition of the contested conceptualization of globalization because transjudicial communications are a specific example of globalization. Second, I provide a brief overview of transjudicial communications in the United States and discuss how resistance to this process is linked to oppression and racism. Finally, I argue how racially-rooted resistance to foreign legal citation inhibits the possibilities for U.S. Supreme Court Justices to learn about race in the context of race-conscious university admissions. I use the example of the Supreme Federal Court of Brazil’s landmark affirmative action decision issued in April 2012 as an example of a missed opportunity for the U.S. Supreme Court to learn about race and the crafting of appropriate race-conscious remedies.
Keywords: foreign law, foreign courts, citation, race, racism
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