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Systemic Judicial Authority: The “Fourth Corner” of “The Judicial Trilemma”?

  • Gleider Hernández (a1)
Abstract

Jeffrey Dunoff and Mark Pollack's Judicial Trilemma is a refreshing challenge to prevailing narratives about judicial decision-making in international courts and tribunals and is part of a growing wave of scholarship deploying empirical, social science-driven methodology to theorize the place of judicial institutions in the international legal field. Seeking to peek behind the black robes and divine the reasoning behind judicial decisions without descending into speculation and actively trying to thwart considerations of confidentiality is a fraught endeavor on which I have expressed skepticism in the past. The Judicial Trilemma admirably seeks to overcome these challenges, and I commend the authors for tackling the hard question as to whether one can truly glance behind the black robe.

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Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Jeffrey Dunoff & Mark Pollack, The Judicial Trilemma, 111 AJIL 225 (2017).

3 See Gleider I. Hernández, The International Court of Justice and the Judicial Function 127 (2014).

4 See id. at 106.

5 I have developed this idea in id. at ch. IV-V.

6 Dunoff & Pollack, supra note 1, at 257, citing José E. Alvarez, What Are International Judges for? The Main Functions of International Adjudication, in The Oxford Handbook of International Adjudication 158, 173 (Cesare Romano et al. eds., 2014).

7 Dunoff & Pollack, supra note 1, at 260–71.

8 See their own definition of judicial independence, id. at 231: “judicial politics scholars have extensively theorized and empirically studied the question of judicial independence, broadly defined as the ability of judges to decide cases free of extralegal pressures from outside actors.”

9 Id. at 233; see also discussion of the WTO, id. at 260–71.

10 Id. at 226.

11 Id. at 231.

12 Id. at 234.

13 Id. at 251–52.

14 South West Africa (Eth. v. S. Afr.; Lib. v. S. Afr.), Second Phase, 1966 ICJ Rep. 6 (July 18).

15 It is also possible, of course, that the Court's Revision of its Rules coincided with a period of inactivity because it was only during such a period that the Court would have had the space necessary to embark on such a substantial revision.

16 See the claims by Claus-Dieter Ehlermann, Reflections on the Appellate Body of the WTO, 97 ASIL Proc. 77, 78 (2003) (emphasis added), cited in Dunoff & Pollack, supra note 1, at 266.

17 Dunoff & Pollack, supra note 1, at 234, n. 36.

18 Id. at 274.

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  • ISSN: -
  • EISSN: 2398-7723
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