TRANSNATIONAL LEGAL ARGUMENTS IN U.S. SUPREME COURT LITIGATION, 1979-2010.

For many decades, Supreme Court justices and legal scholars have argued over the validity of different tools in constitutional interpretation, including social science data, public opinion and, most recently, laws and standards of decency from abroad. Although several of those currently on the bench maintain that foreign laws have no place in American constitutional adjudication, the larger universe in which their institution operates has become increasingly transnational since the end of the Cold War. The term judicial transnationalism has been coined to describe this phenomenon, characterized by unprecedented levels of interaction and exchange between foreign courts and legal activists. This paper examines these changes, evaluating the extent to which they have resulted in higher levels or new forms of foreign and transnational participation and interest in Supreme Court cases. In doing so, it tests a common observation made about the effect of judicial globalization in the U.S. context: that because of the increasingly complex and global nature of legal structures, the Supreme Court is more likely to hear cases that involve some form of foreign or international law. By analyzing the litigant and amicus briefs filed in all cases from the 1979-1980, 1989-1990, 1999-2000, and 2009-2010 dockets, this paper attempts to determine if there has indeed been an increase in the presence of foreign law arguments made in briefs filed to the Supreme Court. [ABSTRACT FROM AUTHOR]