For at least the past several decades, judges around the world have been looking beyond their own states’ jurisprudence to international law and the decisions of foreign courts in order to apply domestic law. This widespread practice is part of a phenomenon that Anne-Marie Slaughter calls “judicial globalization.” The American judiciary, however, has exhibited a distinct diffidence toward the use of comparative and international law to decide domestic cases, a diffidence that extends to many elected officials as well. . . . Various defenses of the Supreme Court’s reliance on international and comparative sources have been made, not least by some of the Supreme Court justices themselves.
None of the defenses, however, have met the democratic objections head-on. Instead, justifications have mainly defended the general utility of referencing additional sources rather than the specific legitimacy of referencing sources from outside the U.S. legal system. The defenses to date fall short for at least two sets of reasons. They fail to grapple with legitimate concerns about the practice. In consequence, they offer no reasons for those opposed to this practice to reconsider their resistance.
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