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84 Tul. L. Rev. 67 (2009-2010)

handle is hein.journals/tulr84 and id is 69 raw text is: Domestic Courts and Global Governance Christopher A. Whytock* Domestic court decisions often make headlines around the world For example, recent United States Supreme Court decisions about the International Court offustice and the rights of foreign detainees held by the United States at Guantanamo Bay have attracted international attention. However, the role of domestic courts in the world extends far beyond headlines. Seemingly routine decisions on issues such as personal jurisdiction, forum non convenens, choice of law, extratemrtonality and arbitration have implications for global govemance. Legal scholarship divides these issues into doctrinal categories like civil procedure, conflict of laws, and international law. But by doing so, it misses the bigger picture: for better or worse, domestic courts arepervasivelyinvolvedin regulating tiansnationalactivity This Article cuts across doctrinal categories to provide a systematic analysis of the global impact of domestic courts. It argues that domestic courts perform two global governance functions: they allocate governance authority, and they deternine ights and obligations of transnational actors. It shows that these functions matter not only for litigants, but also for global welfare. And it proposes a method to ctiically evaluate these functions that moves beyond traditional litigant-focused assessments to analysis of the cross-border effects of domestic court decisions. This method will allow scholars and policy makers to develop the empirical foundations needed for the intensifjing debate over the proper role of domestic courts in addressing global challenges. I. INTRODUCTION .......................................................................... 69 II. THE GLOBAL GOVERNANCE FUNCTIONS OF DOMESTIC C OURTS ..................................................................................... 74 A. Who Governs? JudicialAllocation of Global GovernanceAuthoity ...................................................... 75 1. Allocation of Governance Authority Among States ...................................................................... . 76 a. Adjudicative Authority ............................... 77 b. Prescriptive Authority ............................... 80 c. Enforcement Authority ............................... 81 * © 2009 Christopher A. Whytock. Associate Professor of Law, University of Utah S.J. Quinney College of Law. Earlier versions of this Article were presented at meetings of the American Society of International Law, the Law and Society Association, the Duke University Seminar on Global Governance and Democracy, and the American Political Science Association. I thank Mark Axelrod, Sam Baumgartner, Christian Ford, Lincoln Davies, Mitu Gulati, Laurence Helfer, Austen Parrish, Matt Pierce, and Jennifer Whytock for valuable comments on earlier versions of this Article; Deborah Avant, Paul Schiff Berman, Tim Biithe, Kevin Clermont, Matt Fehrs, Bruce Jentleson, Judith Kelley, David Klein, Peggy McGuinness, Ralf Michaels, Imke Risopp-Nickelson, Wayne Sandholtz, Jenia Iontcheva Turner, Camber Warren, Melissa Waters, Ashley Williams, and David Zaring for suggestions on related papers in which this Article's themes were developed; Jacob Fonnesbeck and Tara Harrison for research assistance; and Angela Turnbow for help with the manuscript.

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