Judicial Decision-Making in a Globalised World

Why do judges study legal sources that originated outside their own national legal system, and how do they use arguments from these sources in deciding domestic cases? Based on interviews with judges, this book presents the inside story of how judges engage with international and comparative law in the highest courts of the United Kingdom, Canada, the United States, France and the Netherlands. A comparative analysis of the views and experiences of the judges clarifies how the decision-making of these Western courts has developed in light of the internationalisation of law and the increased opportunities for transnational judicial communication. While the qualitative analysis reveals the motives that judges claim for using foreign law and the influence of 'globalist' and 'localist' approaches to judging, the author also finds suggestions of a convergence of practices between the courts that are the subject of this study. This empirical analysis is complemented by a constitutional-theoretical inquiry into the procedural and substantive factors of legal evolution, which enable or constrain the development and possible convergence of highest courts' practices. The two strands of the analysis are connected in a final contextual reflection on the future development of the role of Western highest courts.

1. Introduction: Highest Courts in Flux
I. The Trend of Judicial Internationalisation
II. Why Do Judges Cite Foreign Law?
III. Learning from the Views of Judges
IV. Scope of the Research
V. Outline of the Book
2. Understanding the Development of Highest Courts' Practices: A Constitutional-Theoretical Approach
I. Constitutional Theory and Legal Evolution
II. Procedural Aspects of Legal Evolution
III. Substantive Aspects of Legal Evolution
IV. Conclusion
3. Introducing the Comparative and Empirical Analysis
I. Anglo-Saxon Model: A Single Highest Court (United Kingdom, Canada, United States)
II. French Model: Multiple Highest Courts (France, the Netherlands)
III. Comparing the Courts
IV. An Empirical Analysis
V. Conclusion
4. Incorporating the Transnational: Judicial Roles, Relations and Working Methods in a Globalised World
I. Judicial Roles in a Globalised World
II. International Relations of the Highest Courts
III. Working Methods in a Globalised World
IV. Conclusion
5. The Use of Foreign Law in Judicial Decision-Making
I. Status of Foreign Law
II. Use of Foreign Law: Examples from Case Law
III. Justification of Developed Practices
IV. Conclusion
6. Conclusion: Assessing the Development of Highest Courts' Practices
I. Constitutional (In-)Flexibility in Action: Procedural and Substantive Explanations for the Development of Highest Courts' Practices
II. Epilogue: The Future of Judicial Internationalisation

“Elaine Mak's excellent book brings an important contribution to the current debate on judicial decision-making in a globalized world.

...the reviewers strongly suggest the reading of this brilliant book which has all the qualities for becoming a "must-read" for...scholars and practitioners

” –  Suzanne Comtois and Mauro Zamboni, Canadian Journal of Administrative Law and Practice, volume 27, 2014

“It is a very meticulous and welcome, but specialized, addition to the globalization of law literature...

…in meticulously tracking down the prevalence of references to foreign and transitional law in the work of national judges, Professor Mak has pointed to something new in the legal world.

…the virtues of this book are many…[it] contributes importantly to what I hope will be a growing field of “trans-Atlantic” studies.



” –  Martin Shapiro, Law and Politics Book Review

“Mak's comparative study offers a significant contribution to the scholarship on the use of foreign legal materials in legal developments. The close scrutiny of the inner workings of the highest courts also make it a welcome addition to the field of comparative judicial studies. The book certainly merits attention from both lawyers and political scientists.” –  Sophie Turenne, International and Comparative Law Quarterly

“...fresh, ambitious, and hypothesis generating - her book contributes to a powerful research agenda for scholars in the field.” –  Erin F Delaney, Public Law

“Mak provides an accessible comparative analysis that can and should be enjoyed by those with an interest in the influences on judicial decision-making.” –  Melanie Hodges Neufeld, Canadian Law Library