Klodian Rado

Date of Award

6-28-2018

Document Type

Dissertation

Degree Name

Doctor of Philosophy (PhD)

First Advisor

Ruth M. Buchanan

Abstract

Through personal interviews with ten current and former judges of the SCC, case analyses, a review of archival documents, and a quantitative examination of all judgments between 20002016, this study offers a comprehensive exploration of the mechanisms, extent, purpose, and effects of transnational judicial dialogue of the SCC and its justices. Contrary to expectations, SCC participation in this dialogue does not occur only through the citation of foreign judgments. Instead, the SCC incorporates almost all forms of non-domestic legal sources of both an international and a comparative nature (legal mechanisms). However, the judicial dialogue resulting from genuine engagement, interactions, and exchanges in extra-curial activitieswhich vary from face-to-face meetings to formal relationships and creating judicial organizations (extra-judicial mechanisms)is far more extensive than the one that forms around legal mechanisms. Remarkably, judicial conversation occurs not only through courts as institutions but also through individual justices, who are increasingly becoming key actors. This study reveals that transnational judicial dialogue is part of the broader epistemic dissemination of knowledge, and its multifaceted development is driven by a set of reasons that are, on the one hand, pragmatic, historical, diplomatic, and universal, but are, on the other, individual, institutional, national, transnational, and global.

Significantly, this study finds both legal and extra-judicial forms of transnational judicial conversation may have tangible impacts on SCC decision-making. Judicial dialogue conducted through legal mechanisms sometimes directly influences resulting opinions. Judicial dialogue through extra-judicial activities also arguably influences decision-making, albeit indirectly. Although less noticeable, such interactions prompt the SCC to reference both a greater number and a higher quality of non-domestic legal sources. Another crucial finding is that transnational judicial conversations have a demonstrable impact on court management, other internal practices and procedures, and may also influence individual judges. Although beyond the aim of this study, the collected data suggest the effect of judicial dialogue reaches beyond the Court, having both a domestic and transnational/international influence. Finally, transnational judicial dialogue appears to be a significant factor fostering the evolution of the role of judges from interpreters of the law to policy-makers to their modern position as diplomats, networkers, and crucial actors in foreign relations, a role that certainly cannot continue without debate.

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