Paul Schiff Berman
90 Geo. Wash. L. Rev. 1427
The idea of legal pluralism is that law must always negotiate situations when multiple communities and legal authorities seek to regulate the same act or actor. In such situations, judges must develop strategies for determining how best to balance the competing claims of multiple communities: does the law of one community triumph, does the law of the other community triumph, or is some hybrid solution possible?
This Article surveys the jurisprudence of Justice Ruth Bader Ginsburg, revealing that across a variety of substantive legal areas Justice Ginsburg often chose a path that provided maximum play among the legal systems at issue. Beginning with her earliest scholarly writings, she tended to oppose doctrines allowing one legal system to block another from adjudicating a dispute, and throughout her later career Justice Ginsburg likewise tended to reject brightline rules that chose one legal system over another. Instead, she seemed to prefer procedural arrangements that sought accommodation and flexibility, in order to ensure that multiple legal systems and a variety of norms and processes were respected.
By taking stock of Justice Ginsburg’s navigation of legal pluralism in a set of representative writings, we can better theorize her contribution to a jurisprudential approach that seeks ongoing negotiation in an interlocking world of multiple jurisdictions and multiple legal norms. Just as important, this discussion provides a case study for thinking more broadly about possible judicial responses to the reality of legal pluralism.
