HORIZONTAL LEGAL INTEGRATION and the BORROWING of FOREIGN LAW in BRITISH COURTS by KELLEY

CRAFTING INTERNATIONAL LEGAL ORDERS: HORIZONTAL LEGAL INTEGRATION AND THE BORROWING OF FOREIGN LAW IN BRITISH COURTS by KELLEY GREE LITTLEPAGE A DISSERTATION Presented to the Department of Political Science and the Graduate School of the University of Oregon in partial fulfillment of the requirements for the degree of Doctor of Philosophy December 2014 DISSERTATION APPROVAL PAGE Student: Kelley Gree Littlepage Title: Crafting International Legal Orders: Horizontal Legal Integration and the Borrowing of Foreign Law in British Courts This dissertation has been accepted and approved in partial fulfillment of the requirements for the Doctor of Philosophy degree in the Department of Political Science by: Craig Parsons Chairperson Daniel Tichenor Core Member Daniel HoSang Core Member Alison Gash Core Member George Sheridan Institutional Representative and J. Andrew Berglund Dean of the Graduate School Original approval signatures are on file with the University of Oregon Graduate School. Degree awarded December 2014 ii © 2014 Kelley Gree Littlepage iii DISSERTATION ABSTRACT Kelley Gree Littlepage Doctor of Philosophy Department of Political Science December 2014 Title: Crafting International Legal Orders: Horizontal Legal Integration and the Borrowing of Foreign Law in British Courts My dissertation project seeks to understand when and how national judges play an active and significant role in how international legal orders do or do not affect their polities. Specifically, I look at when and how British judges play a role in how European Union law through the European Court of Justice and European human rights law through the European Court of Human Rights affect the British polity. These international legal orders contain both vertical and horizontal aspects. Vertical aspects include the highest court and its judges defined by the treaty, which operates as the international, hierarchical authority on the treaty and is tasked with ensuring the compliance of the member states of the treaty. Horizontal aspects include member state courts and judges who interact with other member state courts and judges as equals voluntarily to share an understanding of the law. Britain is interesting because it may seem like a counterintuitive place to find such dynamics. Britain has a strong resistance to international authority, a deeply entrenched idea of Parliamentary Supremacy, and a dualist legal tradition where Parliament translates international law into domestic law prior to its use by the courts, which contributes to a lack of expectation of British judges engaging in international iv judicial activism, making Britain a hard case. In this context, we should expect that international law only matters to the extent that domestic actors are forced to incorporate it by a strong international legal order with vertical supremacy and unambiguous authority. To the contrary, my dissertation shows that British judges are quite active in many international legal orders in ways that do not merely reflect the degree of established vertical legal authority. Through dynamics that are quite autonomous from British politicians’ difficult interactions with international authority, British judges play a very active role in managing and integrating international law into British politics. To see these dynamics and understand how international law has affected British politics, we must pay special attention to horizontal legal integration. Horizontal legal integration occurs when judges intentionally and selectively borrow legal concepts and precedents from other national or international jurisdictions. v CURRICULUM VITAE NAME OF AUTHOR: Kelley Gree Littlepage GRADUATE AND UNDERGRADUATE SCHOOLS ATTENDED: University of Oregon, Eugene California State University, Stanislaus, Turlock DEGREES AWARDED: Doctor of Philosophy, Political Science, 2014, University of Oregon Master of Arts, Political Science, 2010, University of Oregon Bachelor of Arts, History and Political Science, 2006, California State University, Stanislaus AREAS OF SPECIAL INTEREST: Comparative Politics International Relations International and Comparative Public Law European and European Union Politics Qualitative Methods PROFESSIONAL EXPERIENCE: Adjunct Instructor, University of Nevada, Reno, 2014-2015 Instructor, University of Oregon, Eugene, 2011-2013 Model European Union Advisor, Oregon Consortium for International and Area Studies, University of Oregon, Eugene, 2010-2012 Teaching Assistant, University of Oregon, Eugene, 2006-2012 Research Assistant, University of Oregon, Eugene, 2008-2010 Deputy Managing Editor, Internationality: A Journal of Critical Global Studies, Oregon Consortium for International and Area Studies, University of Oregon, Eugene, 2007-2009 GRANTS, AWARDS, AND HONORS: Graduate School Research Award, Political Science, University of Oregon, 2013 Research Fellowship, Political Science, University of Oregon, 2013 vi National Science Foundation Doctoral Dissertation Research Improvement Grant, Law and Society, SES-1230049, 2012-2013 Graduate Teaching Fellowship, Political Science, University of Oregon, 2006- 2013 Western Graduate Student Research Stipend, European Union Center of Excellence, University of California, Berkeley, 2012 Graduate School Research Award, Political Science, University of Oregon, 2011 Margaret McBride Lehrman Award, Political Science Nominee, University of Oregon, 2011 Institute on Qualitative Research Methods Fellowship, University of Oregon, 2009 vii ACKNOWLEDGMENTS While on the path to the creation of this dissertation, I have incurred many debts. I wish to thank my family for their support and encouragement. I wish to thank my partner, Clayton Cleveland, for his support, understanding, and continual drive to have me complete the endeavor. My parents, Bruce and Pam, have encouraged me to pursue an education since before I could walk. My parents always knew that I would accomplish this goal, even if I had doubts. My grandmother and my great grandmother, Gladys and Lydia, who helped instill in me an independent spirit and the faith that I could achieve any goal which I put my mind to. I would like to thank my dissertation committee for their unwavering support and guidance. Professor Alison Gash kept me grounded in the broader public law literature and introduced me to scholarship that challenged and inspired me. Professor Daniel HoSang helped me to think about the practical aspects of field work and taught me to think about the bigger picture, how an individual dissertation task could contribute to the broader project. Professor Daniel Tichenor is a wonderful mentor; whenever I interacted with him I came away feeling better about what I had accomplished and simultaneously determined to redouble my efforts. Professor George Sheridan provided guidance on grappling with an historical context, how to write with greater clarity, shared advice on the mechanics of dissertating, and always expressed an enthusiasm for the project that was contagious. Professor Craig Parsons as dissertation chair provided sage advice at every stage, inspired and challenged me to always do my best, read numerous drafts with remarkably quick turnaround, and showed astonishing patience with a rebellious graduate student. viii The research and field work conducted to complete this dissertation was made possible by a generous National Science Foundation Dissertation Improvement Grant, awarded in the 2012-2013 school year, SES-1230049. I would also like to thank my fellow University of Oregon graduate students who helped contribute to my intellectual growth and whose friendship greatly aided my sanity: Bruno Anili, Clayton Cleveland, Teresa Finn, Jason Gettel, Leif Hoffmann, Daniel Lemke, Forrest Nabors, Sean Parson, and Adriane Van Der Valk. Through various workshops at European Union Centers of Excellence, I received encouragement and feedback on early chapter drafts and research design from a number of academics I wish to thank: James Caporaso, Bill Davies, Arthur Dyevre, Joseph Jupille, Mert Kartal, R. Daniel Kelemen, Juan Antonio Mayoral Diaz-Asensio, Noreen O’Meara, Christine Neuhold, Tobias Nowak, and Branislav Radeljic. Any contributions made by this dissertation are deeply indebted to all who have supported me, while the errors are mine alone. ix In memory of Gladys Faye Becker and Lydia Matilda Nealis. x TABLE OF CONTENTS Chapter Page I. SITUATING BRITISH JUDGES IN INTERNATIONAL LEGAL ORDERS .............. 1 A. Introduction .............................................................................................................. 1 B. The Argument .......................................................................................................... 5 C. Significance............................................................................................................ 10 D. Methodology: How to Highlight Horizontal Judicial Integration .......................... 12 E. Outline of Dissertation Chapters ............................................................................ 15 II. JUDGES IN A WORLD OF INTERNATIONAL VERTICAL AND HORIZONTAL LEGAL INTEGRATION ....................................................................... 19 A. Introduction ............................................................................................................ 19 B. The Cast of Characters: The Evolving British Judiciary ....................................... 20 i. Law Lords .........................................................................................................

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