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.
Highlights
Jeffrey Dunoff and Mark Pollack’s Judicial Trilemma[1] 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.[2]
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
I started my academic career writing about judicial reasoning at the ICJ, seeking to explain the institutional, sociological, and structural factors which positioned that institution—a wider theoretical project that has since grown into a study of the social processes which constitute authority within the international legal process
Summary
Jeffrey Dunoff and Mark Pollack’s Judicial Trilemma[1] 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.[2]. I come to the domain having spent considerable time peeking behind the black robes themselves, both as a judicial clerk at the ICJ, and as a special assistant to an investment arbitral tribunal. In this regard, I appreciate the challenges inherent in seeking to discern the “reality” of judicial decision-making and the obstacles of confidentiality and institutional loyalty that risk “contaminating” the data. I will make two specific points in my comment on Dunoff and Pollack’s commendable piece: first, in relation to some assumptions embedded in their methodological analysis; and secondly, reflections on what is perhaps the fourth “corner” that has not been addressed in their Trilemma, namely, the institutional or collective authority of the judicial institution in play
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