Judicial Communication Beyond Borders

• In Event: Court Opinion Language and Influence

Abstract

Why do judges use foreign law when domestic law is available? Extent literature offers several explanations including judicial dialogue, persuasive authority, judicial learning, and most recently theoretical authority. This paper serves as a test of these four theories as to when and why domestic judges borrow foreign law from an international court. The international courts examined will include the European Court of Justice and the European Court of Human Rights. Domestic courts examined will include member state courts of the UK, France, and Germany; EFTA member state courts of Norway and Switzerland; and economic partner courts of Australia and Canada. This paper argues that persuasive authority explains the behavior seen in most domestic courts, while type of relationship to the international court does play a contributing role.

Author

• Kelley G. Littlepage, University of Houston