Is Resistance to Foreign Law Rooted in Racism?

15 Pages Posted: 28 Aug 2016

Date Written: August 1, 2014

Abstract

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

Suggested Citation

Lyke, Sheldon Bernard, Is Resistance to Foreign Law Rooted in Racism? (August 1, 2014). Northwestern University Law Review, Vol. 109, 2014. Available at SSRN: https://ssrn.com/abstract=2830723

Sheldon Bernard Lyke (Contact Author)

Whittier Law School ( email )

3333 Harbor Blvd.
Costa Mesa, CA 92626
United States

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