International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Fall 2015/Winter 2016 Issue
 

In Review:
Recent Publications on International and Comparative Law and About Judges and Courts

 

The Court and the World: American Law and the New Global Realities
By: Stephen Breyer, Associate Justice of the Supreme Court of the United States. Alfred A. Knopf. 2015

The Court and the World: American Law and the New Global Realities

Reviewed by: James G. Apple, Editor-in-Chief, International Judicial Monitor and President, International Judicial Academy

Several years ago, in one of the articles in the International Judicial Monitor, there was a discussion about the rising hostility of American conservative commentators and politicians to the use of, or making reference to, foreign and international law by U.S. state and federal judges in deciding cases, in state and federal courts. Conservative commentators bemoaned the fact that some judges, including some sitting on the Supreme Court of the United States, were making reference to statutes, rules and case law emanating from other countries and international organizations, and even citing opinions of foreign and international tribunals in support of judgments. This development may be an outgrowth of a more general idea that the United States is “exceptional,” with an exceptional legal system, seen now in danger of being corrupted by foreign influences. It does not need, so the argument goes, legal rules or doctrine or case law established by the governments of other nations, and certainly not from international tribunals dispensing international law.

According to the International Judicial Monitor article the viewpoint that foreign and international influence has no place in the U.S. legal system is false, at least from a historical perspective. The origins of the U.S. legal system can be traced not only but largely through the English common law, itself capable of being considered a foreign influence, but also from the laws, doctrines and practices of countries whose legal systems reflect the civil law or continental law tradition. As examples, the idea of a separate judicial branch of government, embodied in Article III of the U.S. Constitution, with its suggestion of an independent judiciary, came from the writings of the French jurist and philosopher, Baron Montesquieu. The modern method of conducting a trial for the taking of testimony in front of a magistrate had its origins behind the walls of the Vatican, in Italy. The jury system so common in U.S. state and federal courts came directly from England after it had adopted a rudimentary form from citizen tribunals in France. The idea of a law of nations, or international law as it later became known and is now known in the United States, was a product of continental legal developments, particularly in The Netherlands, Switzerland and Germany in the 16th through 18th centuries, developments later incorporated into the English common law and brought to American shores in the early 17th Century. In his work drafting parts of the U.S. Constitution, James Madison consulted political papers, commentaries and ideas from a broad range of philosophers, jurists and writers from Europe, even reaching back to antiquity. Thus there is no true, pure or virgin American law that has grown and matured in isolation in the United States, and immune from the influence of legal cultures and systems elsewhere. In fact it could be argued that the American legal system has been very much enriched by foreign influences other than the English common law. However it can be doubted that historical perspectives on legal systems provide very much ammunition for those seeking to counter the conservative attacks on the use of international and foreign law in the courts of the United States to resolve cases.

What has been badly needed in the U.S. is a careful and thorough examination of the issue about the use of or reference to international and foreign law, in treaties and treatises, in commentary and case law, by U.S. judges and jurists. One book published several years ago by several U.S. law professors did examine the use and influence of foreign and international law in the U.S. legal system and refuted the arguments of conservative commentators and jurists (The Sword and the Scales see book review in the Summer 2010 issue of the International Judicial Monitor in Archives at top of Home Page). However there is now a much more valuable resource for responding to the conservative view in the form of a new book by Stephen Breyer, Associate Justice of the U.S. Supreme Court. Justice Breyer is in a much better position to comment on the extent and value of contemporary use of international and foreign law in U.S. jurisprudence. Justice Breyer’s book provides almost incontrovertible proof that references and citations to foreign and international law in American jurisprudence are not only historically valid to serve as precedent and useful but also, in this interconnected world we live in, absolutely necessary if the ends of justice are to be served.

Justice Breyer opens his discussion, in the Introduction, with an anecdote to prove the major thrust of his book. He describes a day in October (near the beginning of the usual Supreme Court term of nine months) when he and the other justices were confronted with two cases involving international and foreign law references. One case involved a mundane and relatively minor factual situation - the right of a student from Thailand attending a U.S. university, to sell U.S. textbooks that he had purchased in Thailand at a discounted rate to other students at that university at lower prices than those quoted locally. The second case involved the constitutionality of part of the Foreign Intelligence Surveillance Act that permitted U.S. officials “to listen electronically to certain conversations of foreigners abroad.” Petitioners in that case, attorneys for foreign persons likely to be the target of such intercepted communications, argued that such allowance “violated the confidentiality of their attorney-client communications.” What these two seemingly disparate cases had in common was they each ask the Court “to consider foreign persons and activities, foreign commerce in the first instance and foreign threats to national security in the second.” Justice Breyer went on to note that “the fact of two such ‘foreign’ cases out of the six cases argued that week would have been surprising when I first joined the Court nearly twenty years ago. But it is no longer unusual. More and more, cases before the Court involve foreign activity. That is my professional reality, which I share with counterparts abroad....” He continued by clearly stating the purpose of his book: focusing on the foreign aspect of the Court’s docket and seeking “to make known the new challenges posed by an ever more interdependent world” that justify consultation with foreign law. He accomplishes this stated purpose admirably, with compelling arguments in language and style that in most instances can be understood by lay persons.

The book is divided into four parts, each containing a subset of chapters that address the different kinds cases coming to the Supreme Court that not only support reference to but require consultation with and deference to foreign and international law. Part I of the book deals with “The Constitution, National Security and Individual Rights.” Part II discusses issues relating to “The Foreign Reach of American Statutory Law.” Cases arising under the topic of “International Agreements” are addressed in Part III. The discussions in each part strengthen Justice Breyer’s position that consultation with international and foreign law were not only useful in the many illustrations that he offers, but dispositive of some of them.

Several examples found in these chapters illustrate Justice Breyer’s position:

 

Interstate Commerce - Intel Case - Rules of Discovery - At issue was a U.S. statute “specifically designed to permit a person to obtain discovery material for use in foreign tribunals.” The Intel case involved a controversy in which one U.S. company (Advanced Micro Devices) claimed a violation of European antitrust laws by another U.S. corporation, a competitor (Intel). At issue was the applicability of the U.S. discovery statute in the proceedings. The case ended up in the Supreme Court. The Court had to decide the controversy by interpreting the U.S. statute. Justice Breyer observed:

For present purposes, what lessons should we draw from the Court’s opinion? First, to decide the case - which required interpreting the text of the American statute-the Court had absolutely no choice but to examine (and endeavor to understand) the details of foreign legal procedure....[T]he Court needed to know something about foreign practices and rules....Now the Court needed to understand even more technical rules and systems for administering the law abroad, and to distinguish between a judicial forum, an administrative forum, and the like, in foreign countries.”

Treaty Interpretation - Child Abduction - The United States is a party to the Hague Convention on the Civil Aspects of International Child Abduction. The case before the Supreme Court involved a British husband and an American wife and a child born of their marriage, all living in Chile. When the marriage ended in separation the Chilean courts awarded custody to the wife, with the husband having visitation rights. The wife ultimately took the child to Texas and litigation ensued. Justice Breyer commented: "[T]he federal courts were asked to determine a matter with which they were not very familiar: What is the scope of the parental 'visitation' right under Chilean law, and does it qualify as a form of 'custody' under the treaty?" He wrote that what was “novel” about the particular approach taken by the Court required the Court to “understand not only an international document - namely a treaty - but a foreign country’s laws and customs in an area most unfamiliar to federal courts, domestic relations.

He continued:

What matters for present purposes is that both the majority and the dissenters had to dive rather deep into Chilean family law to understand what visitation rights connote. And this is one area where globalization is coming to transform the Court’s docket and the nature of its work.

The final part, Part IV, titled “The Judge As Diplomat” is perhaps the most instructive and interesting, because it suggests that American judges are entering a whole new age when more will be expected of judges in a new role of understanding and accommodating relations with the legal systems and judiciaries of other countries and in the international arena.

The final chapter is an appropriate one - the adoption of a goal in the new interdependent world in which we all live, a goal asking for an allegiance which is perfectly proper for American judges as well as judges from countries around the world and can be embraced by them: the advancing of the rule of law, which is the title of the last chapter. From the Justice’s comments in the Epilogue of the book, judges in the U.S. and elsewhere in the world can be inspired to contribute to an all-embracing rule of law in the world:

This book shows how and why the Supreme Court must increasingly consider the world beyond our national frontiers. In its growing interdependence, the world of laws offers new opportunities for the exchange of ideas, together with a host of new challenges that bear upon our job of interpreting statutes and treaties and even our Constitution. ...Why is it so important that American courts meet these challenges? As I have suggested, the simplest answer is that they cannot be avoided. The increasingly international nature of so many routine transactions, from car and home rentals to major financial investments, along with instantaneous communications and the increased global flow of individuals - all these new realities give rise to legal questions affecting not just foreigners but Americans as well...One major reason I believe that our Court meet these challenges is for the sake of our nation’s defining experiment: to show that our system, far from being a hindrance, or worse, in the face of new realities, is perfectly well equipped to meet them. If in addition to sustaining a strong economy and a well-educated workforce, and holding together a highly diverse nation, our system can also address the world’s common problems, our example will continue to be influential.”

The acceptance and use of international law is one of the great causes of the 21st Century. Whether it is accepted and used may determine adversely the fate of our planet, as nations find themselves incapable of acting alone to meet the challenges of world security, climate change and a degraded environment, world wide plague and a host of other issues that are present or emerging around the world. The nations of the world are interconnected and interdependent, and only collective efforts through the recognition and use of international law can provide some kind of assurance that the world will survive the many challenges that the 21st Century holds. The world needs a “road map” for such efforts. Justice Breyer’s book is persuasive in the need to consult not only international law but the laws of other nations so that the coming challenges can be met by a unified effort among nations. It provides a good beginning.

Justice Breyer began his book with one explanation of why he wrote the book. At the end he gives another:

The rule of law... is vital to our struggle to build a humane, democratic, and just society. I have written this book in order to show how the interdependence of today’s world, as it has become manifest in our Court’s docket, poses considerable challenges for our judiciary. It is above all the need to maintain a rule of law that should spur us on, jurists and citizens, at home and abroad, to understand these challenges and work at meeting them together.

Justice Breyer’s book should be adopted as a text to be studied for judicial seminars and educational programs in the United States and elsewhere in the world. He has established a path for the judiciary as well as other citizens of the world to follow. The baton has been passed; it is now up to others to carry it forward into the future.

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2014 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
IJM welcomes comments, suggestions, and submissions.
Please contact the IJM editor at ijaworld@verizon.net.