The Misguided Search for "the One Law - and the Ongoing Struggle to Articulate it Correctly"

The public draft of my essay The Misguided Search for "the One Law - and the Ongoing Struggle to Articulate it Correctly", discussing the use of comparative analysis in U.S. domestic ajudication, is now available at SSRN. Here's the abstract:

In Mediating Norms & Identities: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law, Professor Waters urges Federal courts in general, and the Supreme Court of the United States in particular, to participate in an ongoing colloquy between American courts and the courts of other countries. By so participating, suggests Waters, our courts can act not only as norm importers – that is, incorporating foreign precedents into domestic jurisprudence, as in Lawrence v. Texas and Roper v. Simmons – but also as norm exporters, to which other courts in other countries will look when interpreting their own laws and constitutions.

It is not universally agreed that this picture is as rosy as Waters paints it; indeed, many regard it as decidedly dystopian, and fear that Josh Hsu is correct when he claims that "historians [may] likely look back on the era of Atkins, Roper, and Lawrence as a turning point in the Court's decision-making process."

While this essay closely scrutinizes Mediating Norms, I does not so much engage it on its own terms, but rather, at the level of what I perceive to be its animating premises: that is, to critique the conceptions of universal applicability and "the one law" that underlie the transnationalist paradigm of using comparative materials to shed light on purely domestic law. Herein, then, I approach the issue of foreign law through the lens of a skeptical textualist reading Mediating Norms. In doing so, I hope to clarify the parameters of the debate and to restate, formalize, and develop various criticisms propounded by skeptics of foreign law, in particular, those offered in various speeches by Justice Scalia.