Monist lawyers and dualist judges? Human rights advocacy for international law in U.S. courts.

摘要

The legal globalization movement advanced by transnational civic activists cannot propitiously proceed without vigorous contributions from major powers like the U.S. As a principal domestic legal arbiter, the U.S. judiciary naturally becomes the first ideal candidate targeted by human rights activists for propelling the U.S. into this globalization process. In this work, professor Gabriel A. Almond's functional theory is employed to describe how human rights NGOs and individual activists resorted to distinct international machineries and U.S. courts in an effort to rectify U.S. death penalty and refugee policies in concert with universally defined criteria. Besides a functional delineation of political and legal activities in conjunction with capital and refugee lawsuits, a legal-centered approach is additionally introduced in the midst of conducting policy making/implementation/adjudication by U.S. courts to explore whether or not simple neutral laws served as the sole elements accountable for judges' voting outcomes. From a functional horizon, this study also calibrates to what extent human rights activists, by way of death penalty and refugee litigation, were able to integrate U.S. judges and other rights aspirants into this global justice drive.; This work concludes that the legal model is inapposite to understanding judges' decision making in capital and refugee cases. For more than two decades, human rights activists have yet to win over a substantial number of U.S. judges to bolster international capital and refugee standards. Yet, in the course of co-opting U.S. courts into the cause for legal globalization, human rights activists have shown their incredible capabilities in recruiting successive campaigners, including law school students who may in the future alter the current mainstream dualist force in U.S. courts when serving on the U.S. bench.