Domestic courts, transnational law, and international order

Abstract

This article revisits the relationship between law and international order. Building on legal research concerned with transnational law, we argue that domestic courts are endogenous sites of international political change. National courts are constitutive of international order by generating new rules, adjudicating transnational disputes, and bounding state sovereignty. We illustrate the ways in which national courts create new political opportunities by updating three core international relations theory debates. Recognizing the role of domestic courts as global adjudicators enhances our understanding of regime complexity and international forum shopping. By re-interpreting aspects of conventional international law, and engaging in cross-border dialogue, domestic courts challenge our understanding of international diffusion and judicialization. By redefining the boundaries of state authority and sovereignty, national courts create potential for conflict and cooperation. A transnational law perspective illustrates the porous nature between domestic and international spheres, highlighting how domestic courts have become adjudicators for state and non-state actors that operate across mainstream levels of analysis. Our approach calls on scholars to move beyond analyzing national legal systems as mechanisms of compliance to instead consider domestic courts as co-creators of international order.

Recent Trends in Cross-Border Data Access by Law Enforcement Agencies

“…Similar arguments have long been used in many civil cases involving extraterritorial conduct. Domestic courts in various countries have been willing to exercise their jurisdictions extraterritorially in as different domains as human rights, financial regulation, intellectual property, and anti-trust (Kahraman, Kalyanpur, & Newman, 2020). Against this background, it is not surprising that not only have the cross-border data access practices of LEAs involved extraterritorial tenets, but all of the themes discussed in this paper have had these same tenets.…”

What makes an international institution work for labor activists? Shaping international law through strategic litigation

“…Europe is a rich region in terms of the availability of international institutions that provide remedies on a wide range of human rights issues. Different types of international legal remedies, including transnational legal remedies, such as filing cases at domestic courts abroad that have universal jurisdiction on human rights claims, may be available for activists in other parts of the world (Holzmeyer, 2009; Kahraman et al, 2020). Research from other regions and on other issue areas can shed light on how judicial authority and responsiveness factor into activists' decision‐making processes.…”

The Financialization of International Law

“…Our framework also builds important connections to legal realist scholarship on transnational legal orders (TLO). The TLO approach collapses the distinction between domestic and international law, drawing attention to the myriad interactions between lawyers, bureaucrats, and institutions (Whytock 2009;Halliday and Shaffer 2015;Kahraman, Kalyanpur, and Newman 2020). We hope this article will push scholars who analyze transnational law in political science and legal academia to continue working on identifying the coalitions that develop, and the new economic opportunities that emerge, as the individuals that occupy one TLO interact with those in neighboring fields.…”