Article by David Frisch
This Article develops a model of judicial behavior that rests on the idea that a judge's decision is a function of her attitudes and role orientations and these, in turn, are heavily influenced by her law school education. The result is an intellectual stubbornness that may lead judges to reject not only optional innovations that may present themselves, but may also cause them to construe mandatory provisions as if no change had occurred. This model and the Convention on the International Sale of Goods illustrate situations in which the emerging international commercial code may play an important role in the development of domestic law. Although it has been accepted that international instruments have the potential to help shape the law on a domestic level, this phenomenon has only been discussed in the context of legislation. However, these instruments may also exert an influence on the behavior of judges greater than is commonly supposed. For it is surely the case that, in creating a new legal environment for decision making, international instruments are bound to mediate existing intellectual habits and encourage experimentation and growth in cases without an international character. An effort to ensure a clear understanding of this sort would count as one among a wide range of steps to build a framework within which international law can develop without unexpectedly disturbing the domestic legal system.
About the Author
David Frisch. Visiting Professor of Law, College of William and Mary School of Law; Professor of Law, Widener University School of Law. B.S. University of Pennsylvania; J.D. University of Miami School of Law; LL.M. Yale Law School.
Citation
74 Tul. L. Rev. 495 (1999)