Author: Stephen Breyer
Title: "The Court and the World – American Law and the New Global Realities"
Publisher: Vintage Books 2016; 286 pages of text
Stephen Breyer is an associate justice of the United States Supreme Court. In this book, he discusses several decisions of the Supreme Court and the influence on its decisions of the holdings of courts around the world as well as treaties and international agreements.
In his introduction, he mentions the recurring theme not only of rule of law, but of listening to “many voices” when international issues are impacted by decisions of the U.S. Supreme Court.
“I do not ignore the basic fact that the American people can and must democratically determine their own laws. But listening to those who understand the content of relevant foreign law is perfectly consistent with the democratic formulation of our own law. That is because, often the best way to further the basic goals of, for instance, an American statute with foreign implications, or to properly enforce a treaty, or to determine how far beyond our shores our Constitution’s protection may extend, is to take account of a foreign as well as the domestic landscape.”
In Chapter 4, he discusses four cases involving the detention of “suspected members of the Taliban, Al Qaeda and other terrorists groups” at the American naval base at Guantanamo, Cuba. He discusses four cases through which the Supreme Court increasingly reined in the power of the president to hold and try them before a “special military commission created by executive order.”
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He writes the Supreme Court upheld the power of the executive branch authorized by Congress to detain enemy combatants, though the court otherwise “held for the detainees across the board.” This chapter simply reminded me why I have always thought it was a huge mistake to bring these terrorists to Guantanamo instead of leaving them in the custody of the countries in which they were captured.
Breyer writes: “The Guantanamo cases represent the future of our legal system, from which, I believe, there is no going back.” In my opinion, bringing them to Guantanamo set a very bad precedent.
Breyer discusses the regulation of international commerce and the difficulties of applying American law where there is “a demand for legal certainty” and “a dearth of good reasons for using American antifraud law to police the world.” One case which really interested me was a copyright case involving a foreign student in America who noticed the same books he was using could be purchased more cheaply in his home country where the American publisher sold them for less money. He bought them in his home country and sold them to friends in America. The Supreme Court held the “first sale” doctrine protected the copyright when the books were sold, but not when they were resold by the buyer. For me, this was a case where the publisher got what it deserved when it charged more for the books sold in America than overseas.
Chapter 6 on the Alien Tort Statute involving the right of an alien to bring a claim for damages in U.S. courts highlighted the difficulties of claims for torture in other countries and lawsuits against foreign nationals when they are in the U.S. Horrible cases of torture and human rights abuses raise the question of the extraterritorial application of U.S. law. A consideration of foreign law is necessary. Unfortunately, these several cases did not resolve the underlying issues of damages.
In Chapter 7, Breyer discussed several cases involving child custody and the Hague Convention on the Civil Aspects of International Child Abduction. Having presided over many child custody cases, I believe the best interests of the child are prominent. Unfortunately, one case involving an English man and an American woman and a child custody decree from Chile resulted in the child being sent back to Chile to the father who was not awarded custody, but was awarded visitation. The best interests of the child were not mentioned in Breyer’s discussion.
With an ever increasing international commerce and disputes between people with varying contacts with America, the impact of treaties, cultures, regulations among members of trade groups and laws of other countries will inevitably be considered in decisions of American courts.
Breyer writes: “To understand the controversy, one must keep in mind the fact that the Supreme Court of the United States is a domestic court, not an international court.”
Breyer concludes: “We no longer have the luxury, even if we once did, of operating solely within the confines of our own country, as if the only law that mattered were our own.”
This is not a very exciting read, and it is definitely not a page turner. I found myself skimming several chapters, one involving arbitration, which simply did not interest me. His discussion of antitrust cases with international implications was particularly difficult as I so hated that course in law school I dropped out after only three classes. Fortunately, I never had to deal with any antitrust cases in my 40 years of practice. I cannot recommend this book to the average reader or even to lawyers who do not deal with cases with international aspects.
Robert O. “Bob” Wefald is a retired North Dakota State District Court judge who served in the South Central Judicial District for 12 years. He was attorney general from 1981 to 1984. He served on active duty as a Naval officer from 1964 to 1967 followed by 24 years in the Naval Reserve retiring in 1991.