Document Type

Working Paper

Publication Date

10-13-2017

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; AARN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network; Anthropology & Archaeology Research Network

Abstract

Linnaean Taxonomy and Globalized Law reviews and critiques Justice Stephen Breyer's newest book The Court and the World 2015 In this work Justice Breyer forcefully argues that the US domestic courts have no choice but to engage foreign and international law because "more and more cases before the domestic courts involve foreign activity" and posits that "the best way to preserve American constitutional values a major objective that I hold in common with those who fear the influence of foreign law is to meet the challenges that the world actually presents" Pp 34 8 Justice Breyer observes that an evermore globalized economy will generate legal disputes that increasingly implicate the laws of more than one country he also argues persuasively that the enforcement of international treaties will require transnational cooperation across national judicial systems More controversially however Justice Breyer also forcefully advocates the "crossreferencing" of foreign and international law and sustained efforts to harmonize our domestic law with rules developed abroad Pp 24446 This review essay carefully considers Justice Breyer's main arguments and proofs it concludes that although he makes a compelling case for the increasing globalization of legal disputes his broader and more general arguments for judicial efforts to harmonize or "crossreference" domestic law with foreign and international legal materials are considerably less convincingLinnaean Taxonomy and Globalized Law posits that we need to develop and deploy a system of descriptive rules "“ a taxonomy "“ that accurately and reliably identifies cases that require consideration of foreign and international law and those that do not Objecting to the US domestic courts considering foreign and international law is nonsensical when recourse to such material is essential to the proper resolution of a pending legal dispute "“ and enjoys the imprimatur of the political branches to boot On the other hand however consideration of foreign and international law in the absence of any decisional necessity for doing so raises serious and difficult questions of both institutional legitimacy and competence We can and should distinguish the need to disentangle complex transnational conflictoflaws problems as well as questions rooted in international law from more general abstract claims about the creation of a globalized system of law To accomplish this task I argue that our domestic courts will need to develop and deploy a taxonomy of transnational judicial engagement that carefully identifies and distinguishes one kind of engagement with foreign and international law from the other

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