Should Courts Fear Transnational Engagement?

Olga Frishman is a Golda Meir/Lady Davis Post-Doctoral Fellow at the Faculty of Law, the Hebrew University of Jerusalem. Ms. Frishman’s Article explores the idea that judicial citation of foreign law worries many people, including justices of the U.S. Supreme Court, politicians, and legal academics.

The critics in the United States argue that judges “cherry-pick” foreign citations and use them to import foreign norms that do not accord with the Constitution or the will of the American people. This Article argues, based on insights from organizational theory, that the critics overlook another, much greater, concern: the danger does not come from citing or looking at foreign law, but rather, from other types of interaction, such as meetings at judicial organizations, judicial delegations, or judicial conferences. The result of these transnational judicial interactions will be convergence on certain practices of courts, especially in the way courts understand their national roles, the ways they present themselves to their national audiences, and the methods they use to do so. The adoption of these similar practices across national borders is likely to distance the courts from their national audiences and cause courts to lose their national support.