Overload from litigation trades-off with judicial exchanges

In light of increasing global integration and various international outreach activities by the U.S. judiciary, the timing is right for expanding cross-border cooperation and interaction among judiciaries.98 Relationships have developed over the past several decades among judicial systems making information exchanges in civil cases possible on a level never seen before. Judges increasingly appreciate that they function within a common transnational system. Cooperative activities including international educational exchanges, “sister-court” relationships, judicial outreach activities, international judicial conferences, informal meetings, seminars, and similar opportunities for transnational judicial interaction have furthered cordial relationships. Interaction during cross-border criminal cases has done the same.

These activities have also laid a strong foundation for certification- like arrangements. The relationship between the court systems of New York and New South Wales, Australia (NSW) is a prime example. In 2010, the New York state judiciary entered into an informal certification procedure with the NSW courts in the form of a bilateral Memorandum of Understanding (MOU) that contemplates reciprocal cooperation and consultation between their respective judicial systems to enable the parties to obtain correct and authoritative applications of law.99 As the first agreement of its kind between a U.S. and foreign judicial system, this MOU was also designed to combat the high cost of legal experts and reduce the confusion caused by conflicting accounts of foreign law.100 In principle, with the litigants’ consent, the MOU allows both jurisdictions to exchange analysis about a contested dispositive legal issue.101

The path to a successful transnational certification system involves finding the time and resources to answer legal questions received from foreign courts. Court systems in the United States and other countries are often overburdened with their own civil caseloads. Adding another dimension of legal review to the mix could overwhelm some courts. However, courts might look to emeritus or retired judges for special assistance. They might also tap into other competent court officials. Many countries maintain a Central Authority that could provide accurate information regarding their domestic law. Alternatively, court systems could rely on current judges who are interested in international cooperation and who are willing to volunteer their time and expertise. By way of illustration, the New York State court system is relying upon volunteer judges to operate their informal certification system with New South Wales. New York has staffed its “certification” board with one volunteer judge from the New York Court of Appeals and one volunteer judge from each appellate division.102 With an eye towards enhancing accuracy and promoting comity, a panel of three judges functioning as referees will consider any certified questions about New York law submitted by NSW courts and provide a report prepared outside of work hours.103