The Judicial Role in New Democracies: A Strategic Account of Comparative Citation

Johanna Kalb 

Loyola University New Orleans College of Law
February 26, 2013

38 Yale Journal of International Law 423 (2013)
Loyola University New Orleans College of Law Research Paper No. 2013-15 
Abstract:      

The United States Supreme Court has come under fire in recent years for its occasional references to foreign and international law. Critics suggest that the practice is undemocratic, displacing democratically developed norms with those of the international community. This Article challenges this critique via reference to the comparative citation practice of successful judiciaries in new democracies around the world. When institutional failures and international pressures threaten the democratic accountability of elected institutions, as they do in most countries in political transition, jurists may strategically use foreign and international law as a tool of "diagonal accountability" to mediate between domestic and international actors in ways that build the legitimacy of national political institutions and create space for democratic deliberations to occur. Thus, contrary to the dominant critique, this Article suggests that when democratic legitimacy is challenged, comparative citation can be part of the solution, rather than part of the problem. And though this phenomenon is most pronounced in new or fragile democracies, this Article contends that the comparative citation may also help courts in established democracies to mediate the domestic pressures created by globalization.

Number of Pages in PDF File: 44

Keywords: U.S. Supreme Court, democracy, courts, judges, foreign law, international law, comparative citation

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2331642