The Democratizing Effects of Transjudicial Coordination

Abstract

There are growing indications that transjudicial dialogue among national courts has increased in recent years and that it has become more routinized. We argue below that this trend is at least partially motivated by the efforts of these courts to: (1) address a 'judicial deficit' that has resulted from the broad transfer of regulatory policy-making authority from the domestic to the international sphere; and (2) curb pro-executive interpretations of regulatory rules on the part of less politically insulated international tribunals. While recognizing the dangers of 'le gouvernement des juges', we suggest that, at least in the short term, the expanded role of national courts can operate to enhance rather than pre-empt domestic political processes and promote accountability to diverse democratic concerns by providing opportunities for national legislatures and civil society to weigh in on matters subject to executive discretion or international regulation.