A Brave New Judicial World
AMERICAN EXCEPTIONALISM in the judicial context is not exceptional so much as temporal. One of the three elements of Michael Ignatieff's definition of American exceptionalism is judicial isolation. “American judges,” he writes, “are exceptionally resistant to using foreign human rights precedents to guide them in their domestic opinions.” This attitude, he adds, “is anchored in a broad popular sentiment that the land of Jefferson and Lincoln has nothing to learn about rights from any other country.”1 Several other contributions to this volume, most notably those by Frank Michelman and Harold Koh, directly address the extent to which American judges defiantly define themselves outside the mainstream of global judicial conversation. I have also written repeatedly in this vein.2 In fact, however, when American judicial behavior is examined over a decade, what is most striking is the extent to which U.S. judges have come to understand and accept that they are deciding cases in a global as well as a national context.3 In this longer view, what we are witnessing is more likely a clumsy and contested process of judicial globalization than an enduring and exceptional isolationism.
Increased American judicial globalization is most evident in private commercial cases in which, owing to economic globalization, U.S.
I am indebted, as I am so often, to William Burke-White and Terry Murphy for research
and editing assistance. I also thank two anonymous reviewers and Ian Malcolm of Princeton
1See Michael Ignatieff's introduction to this volume.
2See Anne-Marie Slaughter, “Judicial Globalization,” Virginia Journal of International
Law 40 (2000): 1103–24; Anne-Marie Slaughter, “A Global Community of Courts,” Har-
vard Journal of International Law 44 (2003): 191–219; Anne-Marie Slaughter, “A Typol-
ogy of Transjudicial Communication,” University of Richmond Law Review 29 (1994):
3 I first started chronicling “transjudicial communication” in 1994. In 1995 Thomas
Franck held a seminal conference at New York University that was chaired by Justice
O'Connor and included Justices Breyer and Ginsberg and an astonishing assembly of top
supreme court judges and judges from international tribunals from all over the world. The
American participants were noticeably impressed by their global colleagues. In the interven-
ing decade, the frequency of citations to foreign law and of face-to-face meeting of judges