ABSTRACT
Human rights jurisprudence in the post-9/11 era provides a handy frequency for tuning into transjurisdictional conversations between national and transnational courts. The stark challenges to the rule of law posed by counter-terrorism initiatives have dislodged North American, European, Australian, and New Zealand judges from the more comfortable task of refining existing rights protection regimes within their respective constitutional frameworks. Issues that would have scarcely been debatable two decades ago – including freedom from torture, secret trials, and indefinite detention – have moved from the margin to the center of legal debate. The role of the judiciary as conscience and constraint on the exercise of power by democratically elected officials has simultaneously grown more salient and more controversial. Given this shifting legal landscape, many courts look to the dicta of other courts and to the practices of other states to draw inspiration, guidance, and both positive and negative examples. References by one court to another jurisdiction may relate to the interpretation of analogous constitutional provisions, the approach by another court to an international legal norm binding on both states, or an alternative legislative model that responds to a government’s legal claim that no viable alternative exists to the rights-restricting course of action it has taken (McCrudden 2000; Provost 2008; Slaughter 2003). Scholars evaluate this general trend differently. Some hail transjudicial communication as the establishment of an epistemic community promoting a globalized rule of law through a converging elaboration of fundamental human rights norms. Others caution against judicial borrowings that tend to be unreflective, haphazard, self-serving, and insufficiently attentive to legal context and culture. To the bemusement – and amusement – of outside observers, some US jurists and scholars are locked in a peculiarly instrumental battle that pits exceptionalists against imperialists. The former abjure the importation of any foreign influence into US courtrooms that might corrupt American judicial reasoning. The latter counter
that the capacity of the United States to exert influence around the world through the force of its jurisprudence is jeopardized by the diminishing regard by other courts for decisions by US courts. This, they believe, is driven by petulance at US courts’ lack of reciprocity. In other words, US courts should cite foreign judgments more often so that foreign courts will pay more attention to US jurisprudence.1
