Ronald James Krotoszynski of Washington and Lee University School of Law has posted "I'd Like to Teach the World to Sing (in Perfect Harmony): International Judicial Dialogue and the Muses - Reflections on the Perils and the Promise of International Judicial Dialogue" (Michigan Law Review, Vol. 104, May 2006 forthcoming) on SSRN. Here's the abstract:
"I'd Like to Teach the World to Sing" considers the implications and lessons of "Judges in Contemporary Democracy" for the ongoing debate about the legitimacy of international judicial dialogue, with particular attention to the problems associated with operationalizing strong forms of transnational borrowing of foreign legal precedents. The interlocutors participating in the conversations set forth in Judges in Contemporary Democracy are a remarkably talented group, including three members of national constitutional courts (Robert Badinter, Stephen Breyer, and Dieter Grimm), two members of transnational courts (Gil Carlos Rodriguez Iglesias and Antonio Cassese), and a well regarded constitutional theorist (Prof. Ronald Dworkin). Even so, the participants at times fail to appreciate the importance of political, social, economic, and cultural factors (as well as institutional structure) in the operation of both courts and legal rules. Even as the book demonstrates the potential value of informal forms of international judicial dialogue, it suggests that significant problems remain to be addressed before strong forms of international judicial dialogue (such as overt transnational borrowing of foreign legal precedents) could be implemented successfully.
"I'd Like to Teach the World to Sing" begins with a review of the idea of international judicial dialogue as propounded by its supporters and questioned by its critics. The review essay then considers and critiques the pricipal arguments set forth in Judges in Contemporary Democracy and the implications of these discussions for the project of international judicial dialogue. The essay concludes by positing that weak forms of international judicial dialogue could serve a kind of judicial muse - an ephemeral source of inspiration and creativity, but probably should not displace formal domestic sources of law in the creation, explication, and enforcement of fundamental human rights.