The Court and the World: American Law and the New Global Realities Paperback – 23 August 2016

I wanted to read Justice Breyer's book for several reasons. I had found his debate appearances with the late Justice Scalia, where they discussed the role of foreign law in construing the Constitution, most interesting. Moreover, talk radio is full of allegations about possible displacement of American law by Sharia law, and I thought Breyer might have some insights on this topic as well. Finally, I had found his two most recent books which I reviewed on Amazon to be full of insights and extremely cogent.This new and quite hefty volume (382 pp. including index) is somewhat different. I don't think this work is aimed so centrally at the general reader as the previous volumes. Breyer here is tackling some quite challenging legal issues which can be complex, especially for the general reader. I mention this because while Breyer's masterful prose is again in evidence, at points for those without legal training the book may prove daunting. So while it is not "light bedtime reading," it is cogent and skillfully written.For me the core of the volume is found in the Postscript (pp. 236-246), where Breyer gets into the key issues of the role of foreign law in the domestic legal system, including constitutional interpretation (the very area where he so challenged Scalia). The preceding several hundred pages are designed to prepare the reader to focus on these key issues. Basically, the general theme is as a result of international integration, American courts are facing an increasing amount of foreign legal issues and concepts as they discharge their responsibilities. This situation gives rise to all manner of issues: limits on presidential power; extent of the treaty power; rights of Guantanamo prisoners; application of American law abroad; the role of international legal comity; and laws such as the Alien Tort Statute which impose liability for foreign actions in American courts.American judges and legislators must be prepared to deal with these new issues. How are treaties, conventions, the UN Charter and international law to be applied? What role does the International Court of Justice play and are its decisions binding upon American courts? These are the very kinds of issues that in part led to the recent British departure from the European Community--and they can be extremely tough. Can judges participating in international law teaching or panels, as well as exchanges of lawyers and law students, use these opportunities to improve judicial understanding of the new complexities of the world's legal systems as they interact?As for the issue of the role and possible dominance of foreign law in American domestic law, Breyer's excellent analysis can be boiled down to a straightforward proposition: "don't fret,"some manner of Kantian universal law is not a likely prospect, and the American system can adjust to these new international developments. A very fine introduction to these vitally important issues by the author several of the key Supreme Court cases in this area. That Breyer alerts us to so many crucial aspects bears special commendation for a job well done. You will understand more of what is going on in the world for having read this book--and that is its greatest contribution.

Stephen Breyer, a judge of the United States Supreme Court, is known for having leanings towards freedom oriented approach and practical considerations in judicial decision making. He is also known for his research and development in matters concerning the world affairs. The book under review presents his outstanding brilliance based on moderate approach in decision making relating to application of international law.[2]Justice Breyer has previously written many books on the role of judiciary and legal philosophy.[3] The present book places emphasis more on extra-territorial application of US Law. In the present days scenario instances of application of US law in extra territorial instances is becoming more common and the confronting complex situations present challenging task for the Judges.The book presents discussions on important topics like national security, statutory interpretations, treaty interpretation and applications. Interactions among judges of different states have also been discussed in detail. Detailed description and analysis of the relevant Supreme Court cases has been provided by the author and these include both historical and recently decided cases. Two major themes have emerged from these case discussions including the judicial resolution of institutional disputes, where such disputes are contested the focus is on the interest of other nations, the outcome leads to the application of rule of law, and the considerations required by judges to take notice of foreign laws, procedures and practices. In this regard the author observes: “There is no Supreme Court of the world with power to settle harmonic differences among the approaches of different nations”.As per author, where complex problems are confronted, a collaborative approach is needed. He accordingly observes: “Judicial awareness can no longer stop at the borders”.In a number of cases discussed in this work the author presents the conflict arising out of individual liberty and national security. He observes, the US Supreme Court has maintained a balanced approach to interpret the presidential actions concerning national security and in many instances the Court restrained to intervene following the principle that laws are silent during wartime. The author observes that during major wars namely, civil war, World War I and World War II, the US Supreme Court restrained itself to intervene in matters relating to protection of individual liberty. In his opinion the lower Courts invoked the political question doctrine as a basis for declining to decide issues concerning Vietnam War. The Supreme Court, according to him showed willingness to resolve cases of national security but interpreted presidential powers very broadly, for example, Curtis-Wright decision,[4] and the infamous Korematsu decision, the Court showed broad deference to executive powers.[5]As per author it was the steel case in which the US Supreme Court held that president Truman had exceeded his powers by seizing the steel mills in the country during the Korean War.[6] As per justice Breyer this case marked a shift in the Court's approach. He observes: "the Court took the view that during war, the President does not have a blank check'." In author's perspective the decisions on war on terror lead to the development of contextual case by case approach.The author emphasizes that compared to the past and in order to decide national security cases, the Courts require information on the events in more detail. As per author, US Courts also consider how other countries in the world have sorted out such problems; these examples enable US Courts to find out the real constitutional problems of the United States.In chapter 5- 6 the author deliberates on recent decisions pronounced by US Courts on international relations, and more specifically, on international commerce which is the subject matter of chapter 5, the dimension in the chapter revolves around four important cases namely, F. Hoffmann-La Roche Ltd. v. Empagran SA.[7] Intel Corp. v. Advance Micro Devices Inc,[8] Morrison v. National Australia Bank Ltd,[9] and Kirtsaeng v. John Wiley & Sons Inc.[10] In these cases the Court was confronted with the following problems:a) The extraterritorial application of US antitrust law;b) The ability to obtain discovery of evidence relating to foreign proceedings;c) Extraterritorial application of the securities fraud statute; andd) Application of first sale' doctrine in US copyright law in respect of goods first sold outside the United States.As per author, the US Supreme Court considered the reciprocity of the application of US laws abroad and the Court came to the following conclusions:a) The US Supreme Court ordinarily construes ambiguous statues to avoid unreasonable interference with the Sovereign authority of other nations.[11]b) The Supreme Courts considers the international comity in deciding whether and to what extent to apply US laws abroad. In the court's conception of comity, contends Justice Breyer, "from one emphasizing the more formal objective of simple conflict avoidance to the more practical objective of maintaining cooperative working arrangements with corresponding enforcement authorities of different nations".The author discusses Human Rights in chapter 6 particularly with reference to Alien Tort Statute (ATS). The author refers to the case of Filartiga v. Pena-Irala.[12] He then explains how US Supreme Courts in the case of Sosa v. Alvarez-Machain[13] closed this open issue. He observes that the Sosa case was misinterpreted by the lower Courts as suits under ATS law against Multinational Corporations continued to increase and led to emergence of conflict in foreign relations, he specifically refers to the issue of judicial legitimacy under ATS.The author draws our attention to US Supreme Court's decision namely, Kiobel v. Royal Dutch Petroleum Co[14] in more detail and observes that the Court held that: i. Under ATS law claims are subject to presumption against extraterritoriality; ii. Relief sought in the case was refused as these claims demanded a relief for the violations of the laws of foreign nations occurring outside United States.[15]The author suggests that many readers interpreted this case in a narrow sense; the fact is that the decision does not bar claims by victims of foreign human rights abuses when brought against individuals who resides in United States.In chapter 7- 10, the author has analyzed issues relating to interpretation and application of treaties. In chapter 7, the author emphasizes on the Hague convention and on the civil aspects of international child Abduction.[16] As per author in another case namely, Abbot v. Abbott the US Supreme Court considered the custody right under the said convention.[17] In Lozano v. Montoya Alvarez, the court considered whether or not the given time frame under the convention fell within the framework of equity.[18] These cases show, how the court extended its learning scope with regard to foreign laws, customs and practices.Chapter 8 of the book is concerned with the laws of treaties and commercial arbitration. The author argues that a special note has been taken in the case namely, BG Group PLC v. Republic of Argentina.[19] In that case the Court concludes that: i. A US court should give defense to an arbitral panel’s interpretation of a local litigation requirement in an investment treaty arbitration clause. ii. How can Courts exercise judicial review of arbitral decisions to ensure that awards are fair and consistent with domestic laws, without undermining the efficiency and neutrality of the arbitral system?The issue of Government’s power to conclude treaties stands discussed in Chapter 9. As per author, new developments have taken place in this regard. For example, the author observes, many international organizations have now taken over the traditional tasks of domestic governments. And an element of uncertainty has emerged relating to what extent the National Constitution permits the role assumed by the international organizations or in other words to what extent the Constitution permits delegation of authority to such international institutions. For example in the case of NRDC v. EPA[20] a circuit court questioned the validity and binding effect of a decision made on the basis of Montreal Protocol on substances. The issue of International delegation, as per author has not yet been dealt by the US Supreme Court.[21] In Sanchez Llamas v. Oregon, the Court gave respect and full consideration to the ICJ’s reasoning concerning the effect of Article 36 on domestic rules of procedural default, yet the court disagreed with the reasoning[22] of the ICJ.The issue, "whether or not a judgment of the International Court of Justice was self executing", also came for consideration before the Court in the case of Medellin v. Texas, and the Court took the view that commitment of United States under Article 94 of the United Nations Charter to comply with ICI's decision was not self executing and did not cause to pre-empt state law.[23]The Court’s decision namely, Bond v. United States has also been discussed by the author. The case involved a federal criminal prosecution relating to chemical weapons convention.[24] As per author, the court did not address the constitutional scope of treaty powers and the earlier decision on the subject, however, courts decision namely; Missouri v. Holland[25] still remains valid in the field, in that case the court had held that the treaty power is not subject to constraints of federalism which apply in domestic legislation.[26]The author has emphasized that, “One must keep in mind the fact that the Supreme Court of the United States is a domestic Court, not an international Court”. And where the Court intended to learn and apply foreign laws and practices, the author shows his sympathy towards this attitude; in this regard he rejects the critics of the Court’s practices on the ground that new realities of the world are to be accepted, yet author is of the view that decision making is a kind of problem solving.In chapter 11 – 12 the author discusses the mutual relationship and understanding of the Supreme Court Judges with the judges of foreign courts. He emphasizes that US institution can take benefit from ECJ's practice of proportionality analysis and its approach towards regulations relating to commerce, similarly he notes with approval of the Indian Courts experience with ADR for to decrease the pendency, He also shares, his learning experience with Chinese legal system, interaction with Tunisian intellectuals and the Chief Justice of Ghana. In his opinion such interactions can support the rule of law particularly with reference to independence of judiciary.In the chapter on Court and world, he discusses the cases decided by the US Supreme Court, and highlights cross boarder nature of disputes before the Court. He also highlights cross border nature of disputes before the court. He appreciates Court's judgments in this field which he finds as balanced and engaging. He draws our attention towards comparative foreign relations law[27] and proposes that a serious attention is required to be given to this subject as both judges and scholars can learn a lot from this experience.[28]The author being quite careful while discussing the cases which have been heard by him as being part of the Court and except Kiobel case; his comments portray what has been stated by the Court. In his personal opinions he is too cautious and does not say much about the way international problems can be solved, in his opinion in this regard more clarity is wanting.In respect of Court's approach towards international cases, he brings out the following trends for the readers:a) A serious judicial engagement;b) Contextual case by case deliberation.[29] However, it is notable that the trends discussed by author are general, as in many cases the Court has gone for a categorical approach rather than contextual and in Medellin case the author's point of view was rejected by the majority.[30] Even in cases related to war on terror, baring a few, the Court allowed the government to work and avoided review on detention and use of force.[31] The author notes that even in Kiobel case the extraterritorial presumption though became applicable, yet in view of the majority; the claimants living in United States could still sue for compensation.[32] However, as per majority where the conduct under review took place outside US, the Claims under ATS became liable for rejection.[33]Despite the said arguments, in Kiobel case his point of view is that:a. The approach of limiting the ATS to situations in which relevant conduct occurs outside the United States is not correct;b. The statute should be applied whenever defendant's conduct implicates an important American national interest;[34] andc. The country is to be prevented from becoming a safe harbor for the common enemies of mankind.[35]It looks as if he did not seem to believe that he was describing what was entailed by the majority opinion.[36]All said and done, as per author's views it is established that in Kiobel the Supreme Court was not standing as a world court. The author despite all that tends to see that:a) More attention is to be paid by US Courts to international and foreign laws and practices while interpreting and applying US law.In absence of guidance and limitations from administration, Court is free in applying US laws abroad, evaluating foreign conduct and incorporating internation[1] LL.M (WashULaw), MPA (USC), JSD (TJSL), Attorney at law[2] See e.g, Kiobel Dutch Petroleum Co, 133 S.Cr. 1659, 1670 (2013) (Breyer, 1, concurring), Morrison v. Nat'l Austl. Bank Ltd, 561 U.S. 247, 273 (2010) (Breyer, J, concurring in part): Medellin v. Texas, 552 U.S. 491, 538 (2008) (Breyer, 1, dissenting); Sosa v. Alvarez-Machain, 542 US. 692, 760 (2004) (Breyer, 1, concurring in part),F. Hoffman-La-Roche Ltd v. Empagran SA, 542 U.S. 155 (2004) (writing for the Court).[3] See Stephen Breyer, Active Liberty: Interpreting our democratic constitution (2006). Stephen Breyer, making our democracy work: A judge's view (2010)[4] See United States v. Curtiss-Wright Export Corp, 299 U.S. 304, 319 (1936). Recently in Zivotofsky v. Kerry, 135 S.C. 2076, 2090 (2015). The Supreme Court distanced itself from some of the dicta in Curtiss Wright.[5] See Korematsu v. United States, 323 US. 214, 218-19 (1944).[6] See Youngstown Sheet & Tube Co. V. Sawyer (Steel Seizure). 343 U.S. 579 (1952).[7] Empagran, 542 U.S. 155[8] Intel Corp v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).[9] Morrison v. Nat’l Austl. Bank Ltd, 561 U.S 247 (2010).[10] Kirtsaeng v. John Wiey & Sons, Inc[11] Empagran, 542 U.S at 164[12] Filartiga v. Pena-Irala, 630 F. 2d 876 (2d Cit. 1980)[13] Sosa v. Alverez-Machain, 542 U.S 962 (2004).[14] Kiobel v. Royal Dutch Petroleum Co., 133 S.ct 1659 (2013)[15] Id. At 1669.[16] Convention on the Civil Aspects of international Child Abduction opened for signature Oct. 25, 1980, TIAS 11,760, 1343 UNTS 98.[17] See Abbott v. Abbott, 560 U.S. 1 (2010).[18] See Lozano v. Montoya Alvarez, 134 S. Cr. 1224 (2014).[19] BG Group PLC v. Republic of Argentina. 134 S. C. 1198 (2014).[20] See NRDC v. EPA, 464 F.3d 1, 9 (D.C. Cir. 2006) (discussing Montreal Protocol on Substances That Deplete the Ozone Layer, Sept, 16, 1987, 5. Treaty Doc. No 100-10 (1987). 1522 UNTS 3, 26 LM 1550 (1987).[21] "Vienna Convention on Consular Relations, Article 36, Apr. 24 1963, 21 UST 77 596 UNTS 261 The closest that it has come has been in cases considering the effect of decisions by the International Court of Justice (IC) concerning US noncompliance with Article 36 of the Vienna Convention on Consular Relations, which provides that when a party country arrests nationals from another party country, the former is supposed to advise them of their right to have their consulate notified of the arrest and to communicate with the consulate.[22] Medellin v. Texas, 552 US. 491, 508-10 (2008) (quoting UN Charter Art. 94 (1)). Despite being a dissenter in Sanchez Llamas, Justice Breyer fairly presents the majority's reasoning and usefully underscores that the majority was not claiming that the United States may ignore ICI judgments.[23] Modellin v. Texas S52 U.S. 491, S08-10 (2008) (quoting UN Charter Art. 94 (1). Again despite not having joined the majority opinion, Justice Breyer treats it with respect noting "Naturally, since I wrote the dissent, I am persuaded by its reasoning but that is beside the point. The Courts majority opinion is authoritative, not the dissent. So it is more important to consider the significance of that opinion".[24] "See Bond v. United States, 134 S. C. 2077 (2014) (discussing ratification of the Convention on the prohibition of the Development, Production, Stockpiling and use of Chemical Weapon and on their Destruction, Jan. 13, 1993, S. Treaty Dor. No. 103-21 (1993), 1974 UNTS 45, 32 RM B00 (1993)).[25] "Missouri v Holland, 252 US 416 (1920)[26] See Bond, 134S Ct at 2091; see also Curtis A Bradley, Bond, Clear Statement Requirements, and Political Process, AJIL UNBOUND (June 3, 2014). Instead, the Court in Bond made use of statutory interpretation to cut back on the domestic application of the Chemical Weapons Conventions, reasoning that even a statute implementing a treaty should not be presumed to alter the usual balance of federal and state power absent a clear indication of congressional intent to do so.[27] How other nations handle comparable legal issues.[28] For an effort to prompt greater dialogue among scholars about competitive foreign relations law, see Courts, Treaties, Customs and the Use of Force, Duke University Geneva Conference on Comparative Foreign Relations Law (July 10-11, 2015).[29] In Morrison and Kiobel the Court opted for a categorical approach to extra territoriality rather than more contextual approach.[30] Compare Medellin, 552 U.S. at 550-51 (Breyer, 1, dissenting), with id. At 514-15 (majority opinion) (rejecting the dissent's proposed approach on the ground that it is too indeterminate and ad hoc)."[31] See Curtis A. Bradley, Foreign Relations Law and the Purported Shift Away from "Exceptionalism," 128 HARV. L REV. F. 294, 298-99 (2014)[32] Kiobel v. Royal Dutch Petroleum Co, 133 S.ct. 1659, 1669 (2013).[33] Id. (emphasis added).[34] "See id, at 1674 (Breyer, 1, concurring) (emphasis added).[35] Id. at 1671.[36] Although the lower courts have differed to some extent in their interpretation of the "touch and concern" test from Kiobel, no court so far has held that the mere US residence of a defendant is sufficient to meet that test

There is no Supreme Court of the World. This statement underpins the analysis of the intersection of international law and international legal practices with those of the United States in Stephen Breyer's well written book on the subject. Citing domestic and international cases, and focusing on treaties, treaty implementation, cross-border regulation, foreign citizens, norms and customs, the book provides a 30,000 foot view of some of the more critical elements of the issues facing the US Supreme Court. It reads like a law book, but is very readable. An interesting and thoughtful perspective.

Justice Stephen Breyer's new book, "The Court and the World," should be required reading for every candidate running for president, every candidate for an appointment to federal bench, and every American! It's an astounding achievement by a brilliant legal mind.I can remember being a first-year graduate student in political science discussing the disdain with which some viewed death penalty opinions which cited foreign courts and/or laws and practices. Today (some years later!), it's with pleasure that I read Breyer's book. He makes an eloquent argument regarding why the court must be in dialogue with the world for just as America has evolved over the past two-hundred years, so too has the world. Today's challenges - and achievements - necessitate a legal environment that sees the Court has been a critical institution/actor as the United States embarks on actions without precedent to guide us.Overall, Breyer's book is SUPERB. He skillfully avoids turning "The Court and the World" into a legal textbook and instead makes it an enjoyable and informative read for academics and lay readers alike. Highly recommended.

The kind of perspective and voice only a justice on the Court can provide. Great read!