Tulsa Journal of Comparative & International Law v. 12 no. 1 (Fall 2004) p. 109-21.
The topic of this panel refers specifically to the relationship between international law and domestic constitutional law, but in my paper I would like to expand the frame a bit. As Harold Hongju Koh’s keynote lecture for this symposium made clear, transnational legal process is not only found in the dialogue among constitutional courts about constitutional issues. It is also the more general idea that domestic judicial decisions should take into account a broader interest in a smoothly functioning international legal order and therefore, in the words of Justice Blackmun, “reflect the systemic value of reciprocal tolerance and goodwill.” According to this vision, judges owe their allegiance to an international system of norms, not simply to their own domestic law. For example, the Second Circuit recently ruled that a U.S. discovery statute “contemplates international cooperation, and such cooperation presupposes an on-going dialogue between the adjudicative bodies of the world community.” This statement is distinctive, both because its focus on “adjudicative bodies of the world community” seems to transcend individual territorial courts and because it emphasizes dialogue among courts rather than mere deference.
Date of Authorship for this Version
constitutional law, international law, domestic law
Berman, Paul Schiff, "Judges as Cosmopolitan Transnational Actors" (2004). University of Connecticut School of Law Articles and Working Papers. Paper 38.