Domestic and international judges speak separately from their courts' institutional voice in myriad ways.
Instances of separate judicial speech range from written and oral dissents, to posing questions from the bench, to an array of extrajudicial activities, such as media appearances and penning memoirs. In domestic systems such as the United States, despite long-standing concerns that individual speech by judges will undermine the corporate vision of a court and erode 'the cult of the robe,' many now view separate judicial speech as serving a valuable function by contributing to the judiciary’s authority and legitimacy. Yet, while legal scholars have devoted considerable attention to the practice of separate opinion writing, they often ignore differences in types of concurrences or dissents, and largely gloss over the other ways in which judges speak separately on and off the bench. International legal scholars similarly focus on separate written opinions to the exclusion of the broader array of individual judicial speech, behavior, and practices. This talk interrogates the formal and informal ways in which judges make their voices heard and offers an interdisciplinary typology of separate judicial speech, suggesting that it falls along five dimensions of variance that transcend the domestic/international law divide. It argues that different forms of separate speech reveal markedly different understandings of the role judges do and should play within society. It concludes by considering the normative stakes involved in judges speaking separately and the implications for courts in an era of backlash against international institutions and growing challenges to the rule of law.
Neha Jain is Professor of Public International Law at the European University Institute. She is also Associate Professor of Law at the University of Minnesota Law (on special leave). Her scholarship focuses on public international law, criminal law, and comparative law. Prior to joining Minnesota, she was a law research fellow at Georgetown University Law Center and worked at the Max Planck Institute for Foreign and International Criminal Law in Freiburg. Jain has held fellowships at the Stellenbosch Institute of Advanced Study, the Danish National Research Foundation’s Centre of Excellence for International Courts, and the Lauterpacht Centre for International Law. She has also served as a visiting professional in the Chambers Division of the International Criminal Court and is a Board member of the European Society of International Law. Jain is the author of Perpetrators and Accessories in International Criminal Law (Hart, 2014) and her work has appeared in numerous journals, including the American Journal of International Law, European Journal of International Law, and Harvard International Law Journal.