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Out of Bounds: Judges, Legislators, and Europe’s Law

[email protected] Carey Law
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  • Law
  • Medicine
  • Political Science


II Out of Bounds: Judges, Legislators, and Europe’s Law Noga Morag-Levine Michigan State University College of Law Schmooze Ticket March 2004 1 Legal reform has long taken place through the movement of ideas about the law across national borders—sometimes by decree, at other times by choice.1 The spread of American-inspired judicial review to numerous countries over the past few decades is one of the most important contemporary manifestations of the workings of such legal transplantation.2 This phenomenon has had an important structural effect beyond sheer transnational legal exchange. The global emergence of powerful, politically assertive courts has redefined the instruments through which legal transplantation has historically taken place. Prior to the globalization of judicial review, domestic legal systems acquired outside influences through one of two means: military conquest or, more commonly, legislation patterned after foreign models.3 With the rise of powerful judiciaries outside the United States, court opinions have emerged as a novel venue for cross-national importation of law. Newly created or emboldened courts can now draw inspiration from statutes of other countries and the opinions of foreign judges. They were encouraged in this direction by a growing sense of community among segments of the judiciary and legal academy world-wide.4 A distinctive result has been a marked increase in the prevalence of citation to foreign court opinions on the part of European Union (EU) adjudicative bodies and a number of national supreme courts.5 The United States Supreme Court has been comparatively slow to follow this trend. Only a small number of citations to foreign laws and opinion have made their way into Supreme Court opinions in recent years, and these were largely limited to dissents, concurrences, or footnotes. Nonetheless, they sufficed to spark a heated political and legal debate on the legitimac

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