Date of Award

2011

Degree Type

Dissertation

Degree Name

Doctor of Philosophy (PhD)

Department

Political Science

Advisor(s)

Keith J. Bybee

Keywords

Globalization, Law, Legal Process, Supreme Court

Subject Categories

Political Science

Abstract

For many decades, Supreme Court justices and legal scholars have argued over the validity of different tools in constitutional interpretation, including social science data, public opinion and, most recently, laws and standards of decency from abroad. Although several of those currently on the bench maintain that foreign laws have no place in American constitutional adjudication, the larger universe in which their institution operates has become increasingly transnational since the end of the Cold War. The term judicial transnationalism has been coined to describe this phenomenon, characterized by unprecedented levels of interaction and exchange between foreign courts and legal activists. This project examines these changes, evaluating the extent to which they have resulted in higher levels or new forms of foreign and transnational participation and interest in Supreme Court cases. In doing so, it tests three observations made about the effect of judicial globalization on the Court. First, it has been suggested that because of the increasingly complex and global nature of legal structures, the Court is more likely to hear cases that involve some form of foreign or international law. Second, scholars have noted that the Court is increasingly subject to foreign and international legal arguments put forth by a range of participants in and observers of its judicial process. Third, contemporary justices appear to be increasingly engaged in an ongoing conversation about judicial globalization, having become more vocal in discussing its implications in Court opinions as well as public forums. Although these observations have been widely made by scholars of the Court, they lack empirical support. By analyzing the litigant and amicus briefs filed in all cases from the 1989-1990, 1999-2000, and 2009-2010 dockets, this project attempts to provide this support and determine if there been an increase in the presence of foreign law arguments made in briefs filed to the Supreme Court, what kinds of actors are introducing transnational arguments to the Court, and if contemporary justices are devoting more attention to transnationalism in their opinions, public statements, and professional activities.

Access

Open Access

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