This is a consistently interesting book, much more so than one would have expected from the reviews in major papers following its initial release.
The book is about conflict of laws, first between the judicial and political branches of the American government, and then between the laws of the U.S. and the laws in the rest of the world. None of the conflicts arise from simple problems. The law rarely provides a black-and-white line, which is of course why so many cases need to be adjudicated, and why the courts so often have split decisions.
In the U.S., there have often been challenges to exercises of executive power by the President. How does the Court decide if the President has overstepped the limits of the Constitution? In previous eras, the Court was reluctant to decide: the President, after all, is privy to a host of considerations, including secret intelligence, treaties, and sub rosa agreements with other governments about which the Court does not and cannot know. In recent years, however, the Court has jumped into the fray, especially with cases arising out of the capture and trial of international terrorists in general, and the prison in Guantanamo in particular. Cases involving terrorists are especially interesting because most precedent involving the use of extraordinary powers by the executive pertains to specific, time-limited wars. In modern times, the war of terror is constant and threats diffuse. How then should executive power be contained or at least balanced?
Then there are the many cases arising out of the globalization of the economy. As Breyer observes about commerce:
“…national markets are now so interconnected and integrated that the most ordinary commercial transactions can involve a host of different activities and entities across the globe.”
How, for example, are American laws to be applied with respect to companies which have operations, sales, manufacturing, and distribution spread around the globe, and can be owned by holding companies in the U.S. or abroad, or may have labor outsourced in the U.S. or abroad, or may import parts and components from anywhere? What about the case of shoddy goods made in, say, Belgium for an American company and shipped to the U.S. on a ship manufactured in the Netherlands but owned by the United Kingdom? Or what about securities fraud committed by a holding company overseas that owns an American company? Or a conspiracy that takes place over the internet? If there is a perceived infringement of the law at any stage in the process at any location, who can be found libel and in which country’s courts? And how might the ruling of one country’s courts affect international relations?
Finally, there is the somewhat bizarre existence of the Alien Tort Statute, enacted by Congress in 1789 and giving federal district courts original jurisdiction “of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Although the statute was mostly ignored for the first two hundred years after its passage, since 1980 it has gotten new life, which has opened a whole new international can of worms.
Breyer also argues that the need for courts to understand technical as well as legal dimensions of the world and how other laws intersect with our own is increasingly critical. There are a number of international courts now in operation, but their success depends on the cooperation of nations which agree to hold their judgments binding. The United States, for example, is not one of the 122 nations agreeing to abide by the findings of the International Criminal Court (ICC). The United States is a party to the treaty that created the International Court of Justice (ICJ), but as one legal scholar notes (Sean D. Murphy, The United States and the International Court of Justice: Coping with Antinomies in THE UNITED STATES AND INTERNATIONAL COURTS AND TRIBUNALS (Cesare Romano, ed., 2008):
Since 1946, the United States has had an uneasy relationship with the International Court of Justice (ICJ or World Court or Court). On the one hand, the United States embraces the rule of law within its own society and, in principle, within the international system of states. The United States has been and remains an active participant in cases before the Court, appearing before it several times, more than any other state, even in recent years. On the other hand, the United States has never been willing to submit itself to the plenary authority of the Court, and has typically reacted negatively to decisions by the Court that are adverse to U.S. interests.”
Breyer discusses several instances in which the ICJ has ruled against the U.S. and the cases have gone to the Supreme Court for a determination of whether foreign courts – “created pursuant to a treaty ratified by the United States” – can issue judgments that are binding within the United States. It’s probably not a surprise that the Court has ruled (particularly in Iguarta-De La Rosa v. United States, 417 F. 3d 145, 150 (1st cir. 2005) the U.S. need not follow ICJ decisions in matters of domestic law unless a provision in a treaty ratified by the Senate is made into a domestic law by the House. However, this caveat applies to only some treaties – it’s all very complicated; the Court must decide if the caveat applies on a case-by-case basis. But obviously, most nations, especially the U.S., don’t want to give up judicial sovereignty.
Nevertheless, Breyer’s point is that increasingly foreign law and foreign considerations will impact law in the U.S. and influence decisions of the Supreme Court. The Court should extend its range of legal and practical reference. One would think this conclusion is so obvious as to be absurd, but in fact, there are several members of the current Court who are opposed to taking anything into consideration besides domestic concerns. One wonders how they can even think about the complicated cases that now come before the Court with this attitude. Most notably, Justice Breyer has often sparred with Justice Scalia on this subject. Moreover, as Breyer reports, in 2004, 74 members of Congress sponsored legislation stating:
…that judicial determinations regarding the meaning of the laws of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements . . . inform an understanding of the original meaning of the laws of the United States.” (H.R. Res. 568, 108th Cong., 2004)
Where does this resistance come from? Mostly, it stems from political conservatives, who resent, for example, the tendency of most of the rest of the Western world to reject the death penalty, to recognize same-sex relationships, and to have stricter laws about access to guns.
One can only hope that the rule of reason will return to all branches of the U.S. Government, but unfortunately, it is beginning to look more and more unlikely.
Evaluation: Breyer provides an excellent analysis of the facts and issues at stake for each case he discusses, helping readers to understand just how complex the law can be. He presents both sides of the decisions fairly, whether he was in agreement or not, and makes a very good case for the need for increasing knowledge of world law by jurists.
Hardback published by Alfred A. Knopf, a division of Penguin Random House LLC, 2015
Audio Book Run time: 12 hrs, 38 mins. Available as an unabridged digital download from Penguin Random House Audio (2015)
A Note on the Audio Production:
Breyer reads his book well, but employs a number of pronunciation anomalies.
Disputes, for example, are DIS-putes rather than dis-PUTES. He says de-CADE rather than DEC-ade. These may just be regionalisms. Justice Breyer has trouble saying “integral” but so do I. (Let’s get rid of that word!) But the most jarring is the most surprising: his pronunciation of amicus curiae. This is a Latin phrase meaning “friend of the court” which refers to briefs filed by interested outsiders in a legal case. I have always heard one of two pronunciations of “amicus,” either as uh-MEE-kuss or AM-uh-kuss, the first being more common. I was astounded to hear Breyer say “a-MY-cus,” I thought I must have been wrong all these years, and looked it up. I found a most humorous article by language guru William Safire commenting on this very tendency of Breyer’s. He writes:
Tony Mauro, who watches the Supreme Court with a legal-eagle eye for Legal Times, noted that Justice Stephen Breyer has his own pronunciation. ‘During arguments Jan. 15 in Lambrix v. Singletary,’ wrote Mauro, ‘Breyer said ‘a-MY-cus’ so many times that the hapless lawyer before him, solo practitioner Matthew Lawry, adopted the same, clearly incorrect pronunciation just to be accommodating.’ The reporter checked with Prof. William McCarthy of the Greek and Latin department of Catholic University, who agreed that Breyer’s pronunciation was, to say the least, nonstandard; the professor preferred ‘AH-me-kous.'”
Safire went on to say that he then consulted Bryan Garner, the editor of the Dictionary of Modern Legal Usage and the seventh edition of Black’s Law Dictionary. Garner told him:
‘Justice Breyer has adopted an Anglo-Latin pronunciation. . . ‘It will make any Latin teacher apoplectic. But it has English and American history behind it, and that, in the end, matters more than how Cicero might have mouthed the phrase.’”
At any rate, at track 46, Breyer switches to ah-ME-kous. By track 49, however, he is back to ah-MY-cus.