Globalizing Justice , livre ebook

SUNY series in the Foundations of the Democratic State

William Crotty, editor

GLOBALIZING JUSTICE
Critical Perspectives on Transnational Law and the Cross-Border Migration of Legal Norms
Edited by
DONALD W. JACKSON MICHAEL C. TOLLEY MARY L. VOLCANSEK
S TATE U NIVERSITY OF N EW Y ORK P RESS

Published by S TATE U NIVERSITY OF N EW Y ORK P RESS , A LBANY
© 2010 State University of New York
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Library of Congress Cataloging-in-Publication Data
Globalizing justice : critical perspectives on transnational law and the cross-border migration     of legal norms / Edited by Donald W. Jackson, Michael C. Tolley and Mary L. Volcansek.
           p. cm.
    Includes bibliographical references and index.
    ISBN 978-1-4384-3069-0 (hardcover : alk. paper)
    1. International and municipal law. 2. Justice. 3. Globalization. 4. Conflict of laws. I. Jackson, Donald W. II. Tolley, Michael Carlton. III. Volcansek, Mary L., 1948–
    K302.G56 2010
    341—dc22                                                                                  2009023200
10 9 8 7 6 5 4 3 2 1

List of Tables Table 1.1 Uses of Foreign Law, Practices, and Judicial Decisions in Opinions of the Rehnquist Court 18 Table 1.2 Number of Opinions Citing Foreign Legal Practices and Judicial Decisions 19 Table 1.3 Citations of Foreign Law, Practices, and Judicial Decisions in Opinions for the Court and in Concurring and Dissenting Opinions 19 Table 2.1 Citations to Foreign Law in Amicus and Party Briefs 36 Table 3.1 Different Uses of Foreign Law by Domestic Courts 52 Table 8.1 European Social Rights Litigation by Legal Basis and Court 148

Preface and Acknowledgments

Globalization is a far-reaching, multifaceted phenomenon whose consequences on law are just beginning to be studied and understood more fully. The fourteen original studies collected here build on Mary Volcansek and John Stack's edited volume Courts Crossing Borders: Blurring the Lines of Sovereignty (2005), one of the first works by social scientists on the transnational influences on domestic law and courts in the United States and abroad. They are the result of works first presented by scholars at the 20th World Congress of the International Political Science Association (Fukuoka, Japan), the annual meetings of the Research Committee on Comparative Judicial Studies (Naples, Italy; Tempe, Arizona; and Melbourne, Australia), and the American Political Science Association (Philadelphia, Pennsylvania). Together these new works make an important contribution to the literature by assessing the scope and impact of the cross-border migration of legal ideas and norms on the United States, the United Kingdom, Australia, Argentina, and countries in Central America and Europe.
While not ignoring the legitimate concerns of those who fear some aspects of globalization, especially the blurring of the lines of state sovereignty, increasing criticism of global governance and the so-called democratic deficit, and the growing divide between rich and poor nations of the world, the works collected here demonstrate the powerful and often positive impact transnational forces can have on domestic law and the work of national courts. This edited volume documents how various aspects of legal globalization today, including the transnational spread of constitutional and human rights norms, the rise of universal criminal jurisdiction, and the role of both international nongovernmental organizations and domestic human rights commissions, have advanced freedom, rule of law, and democracy around the globe.
We would like to thank several individuals without whom this volume would not have come together. First, thanks to William Crotty, the Thomas P. O'Neill Chair in Public Life at Northeastern University and series editor, for his support of this project from the beginning. We would also like to acknowledge the contributions of Elisabetta de Franciscis of the University of Naples, Doris Marie Provine of Arizona State University, and Brian Galligan of the University of Melbourne, who graciously hosted the meetings of the Research Committee on Comparative Judicial Studies, where the issues of transnational law and the global spread of human rights norms were raised and debated. And special thanks to Sarah DeCapua, who edited all the manuscripts into their present form, and to Joan McEvoy, who carefully prepared the manuscript for publication. We are very grateful for their devoted assistance to this project.
Editors
Donald W. Jackson, Texas Christian University
Michael C. Tolley, Northeastern University
Mary L. Volcansek, Texas Christian University
Introduction

The studies collected in this volume examine the effects of various aspects of globalization today on law and legal systems around the world. The term globalization has many meanings, but for present purposes it is being used to refer to the process of increasing interconnectivity and interdependence among nation-states and the development of what Anne-Marie Slaughter calls a “global community of courts.” 1 Arguably the forces of globalization have been at work for centuries, gradually shaping law and legal processes within sovereign nations. For example, the development of the lex mercatoria , or law merchant, is a story of how early norms and practices of the trading community became the law governing the resolution of commercial maritime disputes in courts both foreign and domestic. What is new today is the nature of the interconnections and extent of the interdependence among nation-states.
The nature and extent of legal globalization may be different today, but the central questions that this phenomenon raises remain the same: How are the forces of globalization today, including the global spread of international human rights norms, the rise of universal criminal jurisdiction, and the pressure for the establishment of rule of law and good governance in the developing world, affecting domestic law, courts, and processes? Are the effects the same in all places at all times? To what degree, if any, has the reception of international human rights norms and universal criminal jurisdiction undermined national authority and the concept of the nation-state?
This volume is divided into four parts:Transnational Influences on the U.S. Supreme Court; The Rise of Transnational Criminal Jurisdiction; Transnational Influences on Rights, Citizenship, and Democratization; and Transnational Law and the Boundaries of Sovereignty. The authors employ a variety of methodological approaches—historical, comparative, normative, and empirical—in an attempt to shed light on the three questions mentioned above.
In chapter 1 , “The U.S. Supreme Court's Use of Comparative Law in the Construction of Constitutional Rights,” David M. O'Brien assesses the influence of transnational human rights norms on the work of the U.S. Supreme Court. The U.S. Supreme Court, O'Brien argues, has come late to the new, global community of courts, and with considerable controversy both within the Court and in the American political system. Whereas O'Brien focuses on “the Rehnquist Court's use of comparative law in the construction of individual rights,” Francine Banner, Ken Miller, and Doris Marie Provine take a wider view in chapter 2 , “Foreign Law in American Jurisprudence: An Empirical Study,” examining the transnational influences on rights and other areas of law. Based on their close analysis of the 2003–2004 Supreme Court term, Banner, Miller, and Provine show that “foreign law and foreign materials” have found their way into the briefs filed by litigants and amici and, as a result, have appeared with increasing frequency in the opinions of the Court. Christopher Whytock rounds out Part I with chapter 3 , “Foreign Law in Domestic Courts: Different Uses, Different Implications.” He develops a typology of the various uses of foreign and international law in U.S. law and examines “the empirical implications of different uses of foreign law that may be useful to a wide range of scholars.”
Part II includes three chapters devoted to the rise of universal criminal jurisdiction and the global efforts to hold individuals responsible for war crimes, crimes against humanity, and genocide. This section commences with Donald Jackson's chapter 4 , “Legitimacy and the Exercise of Universal Criminal Jurisdiction.” In it he examines the “foundations for the legitimacy of criminal prosecutions brought in transnational tribunals exercising universal jurisdiction” and explores some of the “practical problems” encountered i