Adeno Addis (Tulane University – Law School) and Jonathan Remy Nash (Emory University School of Law) have posted Identitarian Anxieties and the Nature of Inter-Tribunal Deliberations on SSRN. Here is the abstract:
On matters of judicial contacts across territorial boundaries—whether horizontal or vertical—two seemingly opposed trends define our globalized world. On the one hand, communication technologies are making it easier for members of judicial tribunals across the globe to get relatively quick access to each other’s judgments and opinions and to consult them for any help they might offer about similar issues and concerns that they face. On the other hand, there is loud and at times fierce resistance, at least in some Western countries, to the proposition that national judicial tribunals may consult foreign decisions and texts to see whether they, along with other data, shed light on issues and concerns of a similar nature that are not unambiguously addressed by domestic rules of decision. This Article attempts to do two things. First, it seeks to specify how inter tribunal dialogues actually occur. Second, it explores whether dialogues or deliberations should properly raise identitarian anxieties. The Article concludes that identitarian anxieties are premised on faulty assumptions about how identities—communal or national—emerge. The Article further suggests that inter-tribunal dialogues might be a better way to understand the evolving identity of the nation-state which continues to occur in the context of a still-evolving international public space. One will not understand the nature of national identities if one does not fully understand the nature of international public space and vice versa. Identities—individual as well as communal—are shaped in the process of engaging the other. And as indicated below, nations, like individuals, are always growing, always becoming; they are never fully achieved. As such, inter-tribunal dialogues contribute to the development and depth of the community of character rather than undermining it. The Article also argues that refusing to engage others not only will lead to partial understanding of self, but also will result in diminished influence in the shaping of the international public space in which one inevitably will be forced to engage.
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