The Heisenberg Uncertainty Principle and the Challenge of Resisting - or Engaging - Transnational Constitutional Law

This Essay considers the desirability and possibility of the U.S. federal and state courts increasing their level of engagement with foreign and international law when deciding domestic law questions. In considering this important issue, I give sustained and careful consideration to Professor Vicki C. Jackson’s masterful work, Constitutional Engagement in a Transnational Era (Oxford University Press 2010), which anyone undertaking serious scholarly work on the question of transnational judicial dialogue will find an essential resource. Professor Jackson -proposes a troika of models that national court systems can adopt with respect to incorporating comparative and international law materials into their domestic jurisprudence: resistance, convergence, and engagement. Jackson buttresses her theoretical typology with significant empirical support. Systemic considerations associated with both the legal culture and broader general culture will, however, strongly impact a particular nation’s approach to reconciling foreign and international law with domestic law. For example, the United States seems to poorly equip its judges and lawyers for engagement, given the minimalistic efforts to incorporate comparative law perspectives into the standard J.D. curriculum (to say nothing of the broader problem of a general lack of interest in acquiring foreign language skills). Engagement has much to recommend it, in terms of policy and theory, but to successfully embrace this model, judges, lawyers, and the legal academy must be prepared to devote greater resources to inculcating the skills necessary for this kind of legal research, writing, and advocacy.