America’s Courts Can’t Ignore the World

It is often said that the world is becoming more international in nature. What does this mean for those of us who live in such a world? When I hear words such as globalizationinterdependence, and multinational, I sometimes feel like Stendhal’s hero Fabrice del Dongo at the beginning of The Charterhouse of Parma. He is a soldier at the Battle of Waterloo. He is lost in the fog of war. He hears bullets whizzing past. He sees Napoleon on his horse, charging back and forth. As he watches, he thinks to himself, I know something important is happening here—I wish I knew what it was.

It is hard not to have this reaction to the rhetoric of globalization. Two general tendencies are at work in many fields of human endeavor, including politics, government, and law. On the one hand, there are the forces of globalism, internationalism, and interdependence among nations. On the other hand, there are the forces of localism pulling us toward our communal, even tribal, roots. This distinction is familiar enough, but in most discussions these forces are seen as antithetical to each other. I wish to suggest that such a view is wrong—that the global and the local both refer to well-functioning features of the modern world. In law, as in many other realms, they do not necessarily present us with either/or choices. We often can take account of both, and we often should. I recognize that in politics these values are often pitted against each other, as in the Brexit campaign in Britain and in the 2016 presidential election in the United States. But the Brexit change may come slowly if it comes at all, and is more difficult to make than one might think. Sometimes I think of political leaders as boat passengers who climb onto the deck and, to avoid seasickness, pretend to steer the heaving vessel.

My own direct judicial experience is limited to local American courts. The Supreme Court of the United States is a local court. We justices deal almost exclusively with laws enacted by Congress and with the Constitution of the United States. Yet local law is increasingly affected by what happens abroad. Lawyers, legislators, and judges to an ever greater extent must look beyond their own shores to answer questions of local law. At the same time, it is important for people who are not lawyers or judges to understand the process through which transnational facts affect national law as interpreted by local courts.

How should law recognize the reality of globalization while also maintaining the importance of local ties? My experience as a judge has changed in this respect over the past two decades. International law, the domestic laws and customs of other nations, and the decisions of foreign courts have become part of today’s American judicial experience. Twenty years ago, out of the 70 or so cases that the Supreme Court fully considers each year, perhaps 3 or 4 percent required us to look beyond our own shores in order to understand the legal problems involved and find the appropriate solution. Today that figure is closer to 20 percent, and is sometimes greater.

Only some of those cases concern the application of treaties or other forms of international law. More of them concern domestic statutes, administrative regulations, or interpretations of the U.S. Constitution. When I speak to an American audience about the need to be aware of foreign law and events, a member of the audience will typically ask, “But isn’t the Constitution an American document? Doesn’t it protect American values?” I answer that the circumstances giving rise to more and more cases include foreign circumstances. Indeed, the best way to preserve American values (which are largely the same as contemporary European values) may well be to take account of what happens abroad.

Consider a problem that now concerns courts in many countries: the conflict between national-security needs and basic civil liberties. The U.S. Constitution delegates to the president and to Congress the power to protect national security, particularly during times of war or emergency. Judges have the authority to determine whether a statute or presidential action violates the Constitution’s protections of individual human rights—for example, the right of free expression and the right not to suffer arbitrary imprisonment. What happens during wartime or a time of emergency, when the requirements of security and civil liberties may conflict?

Justice Robert Jackson once said that a judge trying to determine what the Founders thought about this matter was like Joseph trying to interpret the dreams of Pharaoh. I think it is more accurate to say that, until fairly recently, American courts followed something like Cicero’s dictum on the subject: Silent enim leges inter arma, which I used to translate as “When the cannons roar, the laws fall silent,” until someone pointed out that the Romans did not have cannons. But the point is clear. History tells of many instances when, during wartime, the executive or legislative branch took actions suppressing civil liberties that on later examination were deemed to have unnecessarily and unreasonably deprived American citizens of their constitutional rights. At the beginning of the republic, during hostilities with France, Congress enacted the speech-suppressing Alien and Sedition Acts, which the courts left untouched. During the Civil War, President Abraham Lincoln suspended the writ of habeas corpus and imprisoned thousands of civilians, many of whom were not in the service of the South. It was a terrible war; we can understand his point of view. But we can also understand its opposite. At the time, Secretary of State William Seward told the British ambassador, “I can touch a bell on my right hand and order the imprisonment of a citizen of Ohio; I can touch a bell again and order the imprisonment of a citizen of New York; and no power on earth, except that of the President, can release them. Can the Queen of England do so much?”

We also know about the widespread suppression of civil liberties, particularly free speech, that took place during World War I. During World War II, the Supreme Court, in Korematsu v. United States, refused to set aside the government’s action removing more than 70,000 American citizens of Japanese origin from their homes and interning them in camps. History shows us that officials knew at the time that this action was unnecessary. Why did the Supreme Court uphold it? The case has been much (and in my view properly) criticized. Justice Felix Frankfurter’s diaries report that the great liberal justice Hugo Black began the Court’s private conference on a related case by saying, essentially, “Somebody must run this war. It is either Roosevelt or us. And we cannot.” The Court voted 6–3 to uphold the internment. To read the history of this period is to understand Attorney General Francis Biddle’s perhaps exaggerated statement that “the Constitution has not greatly bothered any wartime President.” Is that an attorney general speaking, or is it Cicero?

The Court’s attitude began to change, however, during the Korean War. President Harry Truman seized America’s steel mills to avoid a strike and keep munitions flowing overseas to supply America’s armed forces. The Court held that the president lacked the power to do so on his own, without Congress—even in wartime. Why the change? Reading the case, I came to believe that the majority of the Court thought that President Franklin D. Roosevelt had gone too far in expanding and exercising presidential power during World War II. And it was easier to write an anti-Roosevelt opinion once Roosevelt was no longer alive, when the case involved a far less popular president. Regardless, the Court in effect wrote that there comes a point when a president has gone too far.

Four cases arising out of the imprisonment at Guantánamo Bay of alleged enemy combatants seized in Afghanistan and elsewhere will bring us up to date. The enemy combatants, not the most popular people in the United States, sued President George W. Bush and Secretary of Defense Donald Rumsfeld, and they won. Suppose, for example, that a detainee claimed he was not an enemy combatant but an innocent farmer, and the government replied that he carried a bazooka, and the detainee countered that peaceful farmers in Afghanistan needed bazookas. Who would decide the dispute, and how? We held that the Defense Department must provide the detainee with a hearing that embodies basic elements of fair procedure. And when Congress subsequently enacted a statute that in effect suspended the writ of habeas corpus, thereby prohibiting detainees at Guantánamo from going to court, we held that the suspension violated the Constitution. The most significant phrase in the Court’s Guantánamo opinions is one Justice Sandra Day O’Connor wrote in an opinion that I joined. She said, “A state of war is not a blank check for the President when it comes to the rights of the nation’s citizens.” That is a fine phrase, but it leads the listener almost immediately to wonder, “Well then, what kind of check is it?”

With this question, you can understand why our opinions did not meet with widespread approval. Some people thought that we had interfered too much with the exercise of judgment by the president and Congress. In reply, I might quote Lord Atkin, a British judge, who wrote in the middle of World War II, “Amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.” More directly, I would say that a doctrine of noninterference points the way back, if not to Cicero, at least to Korematsu.

Others thought that we should have gone further and laid down more comprehensive legal rules for dealing with enemy combatants in times of national emergency. But we do not know what those legal rules ought to be. And it’s true, as Justice Jackson long ago pointed out, that the Constitution is not a “suicide pact.” As judges, we know too little about the nature of an emergency, a war, or a security need that might require diminished protection of civil liberties. Having abandoned Cicero and recognized, despite the inherent limitations of the judicial office, the need to protect liberties, how are we to obtain the necessary knowledge about national-security matters—and about what limitations are in fact required?

This is a question that concerns judges in many parts of the world. European nations also have a constitution or similar documents that protect human liberties. They too suffer from terrorism. And because neither terrorism nor human rights nor judicial responsibility is a purely American matter, part of the answer must lie in becoming more familiar with what is happening elsewhere in the world.

Not long ago, members of the Supreme Court met with British judges. We discussed these matters at some length. Britain has devised a system for extreme cases—say, when a suspected terrorist is arrested and detained on the basis of classified information. The arrested person is given two lawyers. The first meets with the client but is forbidden to see classified matters pertaining to national security; the second doesn’t meet with the client but can see the classified information. This second lawyer can pass on only the gist of that information to the first lawyer, and hence to the client.

Israel, for its part, has devised a system for when authorities believe that a suspect will tell his lawyer something that sounds anodyne but is in fact of consequence—when he will say “Tell my mother I’m fine,” but really mean “Tell my associates to blow up the café.” The armed forces, wishing to detain that suspect without counsel, must explain to a judge why they should not give the detained person a lawyer; if the judge agrees, he or she permits temporary detention. But after a brief time, the government must appear before the judge again and explain why detention is still necessary; if it is approved once more, then the government must return again after a briefer time, and so forth. On each occasion, the judge demands a greater burden of proof.

I am not saying that either of these approaches is perfect or even desirable. I amsaying that no one would want judges to try to find a proper equilibrium between respecting urgent security needs and protecting civil liberties while remaining ignorant of the key elements of the circumstances. If judges are to do their job, they must have the tools. The practices of judges in Britain and Israel may or may not assist us in this extremely difficult predicament, but regardless it helps to understand, in today’s world of international terrorism, what is occurring beyond our own shores.

Let’s look at commerce. A vitamin purchaser in Ecuador wishes to bring an antitrust lawsuit in New York against a Switzerland-based vitamin manufacturer and distributor. The purchaser claims that the manufacturer is a member of an international cartel, which includes an American company, that colluded to raise the prices of its manufactured vitamins. Why bring this lawsuit under American law in New York? Perhaps because American antitrust law provides triple damages.

But does American law apply? To answer this question—a question of local law—in F. Hoffmann–La Roche Ltd. v. Empagran S.A. (2004), the Court had to interpret a vague American statute. We also had to consider whether allowing the suit would unreasonably interfere with the work of the European Union’s own anticartel authority. We received briefs on the point, filed by the EU, several European nations, and lawyers from various countries. We considered a raft of detailed agreements between American and European antitrust authorities that established working arrangements designed to ensure coordination. The working arrangements were far more detailed and jointly administered than those that existed many years ago, when I worked for the antitrust division at the Department of Justice, which involved little more than occasionally meeting our European counterparts for lunch.

Or consider the following case: Australian buyers purchase shares in an Australian company on the Australian stock exchange in Australia. Can they bring a lawsuit under American securities law in America for fraud, based on the Australian company’s alleged overpayment for its purchase of an American company that did business in Florida? We held in Morrison v. National Australia Bank (2010) that they could not. But the result is not the point. The point is that we received briefs from securities-law enforcers, lawyers, and financial managers from around the world. Many told us that to allow the suit would seriously interfere with the ongoing work of securities-law enforcers in Australia, the EU, and other nations. In my view, in order to interpret this local law, we—judges on a local court—had to assess the related interests of other nations. And we saw it not simply as involving “comity”—a traditional legal term that warns against cross-border interference—but as involving efforts to harmonize similar approaches to securities regulation employed by many different nations.

Reading through opinions in older cases written by excellent judges, I became convinced that those judges would have reached the opposite conclusion in their own day: They would have applied only American law. What has changed is the nature of commerce, finance, anti-fraud enforcement, and cooperation among enforcers.

A recent copyright case—Kirtsaeng v. John Wiley & Sons, Inc. (2013)—illustrates the scope of relevant commercial change. A student from Thailand, studying in New York at Cornell, realized that he could buy in Bangkok the English-language textbooks he needed, and at lower prices. He wrote to his family and friends, asking them to send him a few. They sent more than a few, and he sold them to his fellow students. The American publisher became unhappy, brought a lawsuit in New York, and claimed a copyright violation. The technical legal question was whether the “first sale” doctrine permitted the student to resell the books, originally bought in Thailand, without the publisher’s permission. The answer, unfortunately, lay in a few statutory words of supreme ambiguity.

We received briefs from lawyers representing many nations and many publishers, and from other parties around the world. I did not understand why we received such a huge stack of amicus curiae briefs until I read one brief that explained it. Today, copyright is no longer just a matter of books, music, and film. Like jazz, it is everywhere. Automobiles contain copyrighted software, and retailers sell goods with copyrighted labels. The Supreme Court’s answer to this question, we were told in the briefs from abroad, would affect more than $2 trillion worth of commerce. (Even with inflation, that is a lot of money.) We had to understand the commercial implications of practices engaged in by those whom copyright seeks to protect. We needed those briefs.

We eventually decided the case in favor of the student, but it illustrates the size of the impact on international commerce of a decision arising in local law. I want to show the need, implicit in the modern world, for local judges to think about international considerations when they decide questions, including questions of local law.

In 1978, dolly filártiga, a citizen of Paraguay, discovered that a former Paraguayan policeman who had tortured her brother to death in their native country was living in New York City. She also discovered the Alien Tort Statute, which was enacted in 1789. It declared that federal courts “shall have … jurisdiction of any civil action [brought] by an alien for a tort”—that is, a civil wrong—“committed in violation of the law of nations.” Filártiga brought a civil action, she argued that torture was a “violation of the law of nations,” and she sought damages. She won. She did not collect money from the former policeman, who had returned to Paraguay. But, she later wrote, “I came to this country in 1978 hoping simply to look a killer in the eye. With the help of American law, I got so much more.”

Subsequently, victims began to invoke the statute more frequently. But its interpretation was far from simple. Congress had enacted the statute in the 18th century, most likely to help victims of piracy. The basic international legal rule then was something like If you can catch a pirate, you can hang him wherever he is found, but first shake out his pockets and pay any money you find to his victims. Courts must decide who today’s pirates are. What violations of the “law of nations”—torture, genocide, apartheid, slavery, environmental depredation, assassination—fall within the statute’s scope?

And what if the nation in which the civil wrong took place objects to American judges’ deciding such matters? When victims of South African apartheid sued multinational corporations that had done business in South Africa, the postapartheid government filed a brief stating that it did not want American judges to decide this kind of case. South Africa had created its own process—the Truth and Reconciliation Commission—to help overcome the effects of apartheid. It did not want American judges developing other methods for compensating victims. So, when interpreting the Alien Tort Statute, to what extent should American courts follow the views of South Africa?

Moreover, the power of example means that if America can administer such a statute, so can other nations. Is it desirable for national courts to use this kind of statute to judge and to penalize the conduct of citizens of other nations that takes place in those other nations? To what extent does doing so risk disparate interpretations, some of which may involve serious interference by one nation in the affairs of another? These are old questions, but there is no Supreme Court of the World to decide them. Nor do many people believe that nation-states will soon cease to be independent and sovereign entities, or that we’ll have an international court ready to litigate a dispute like Dolly Filártiga’s anytime soon. Consequently, there is an ever-growing need for local courts, acting independently, to arrive at answers that will find widespread acceptance.

The Alien Tort Statute serves a useful purpose in helping bring justice to victims of torture or genocide. But if local judges are to interpret the statute successfully, it might help to ask a form of Kant’s “universal question,” about whether a maxim holds up as a universal law: What will happen if judges in other countries—facing, say, allegations of misconduct by Americans—adopt the same interpretation that our judges now find applicable here? Judges have to ask whether, and how, the interpretations they adopt would work under similar circumstances in other nations. That is a challenging prospect, but one that falls within the realm of possibility.

Let me mention a final set of examples that even more clearly involve international, or transnational, law. The Supreme Court interprets treaties. When we do so, we all agree that the decisions of foreign courts interpreting the same treaty provision are directly relevant. But the nature of treaties has changed. In recent years, we have had to interpret a Hague Convention that governs the abduction of children. Among the amicus curiae briefs we read were some filed by NGOs that sought to obtain adequate protection for abducted children. They argued for a stricter interpretation of some of the treaty’s language. We read other briefs filed by women’s groups anxious to protect women from spousal abuse that can lead to child abduction. They argued for a broader interpretation of that language.

The unusual feature of the case is that, in the United States, domestic-relations cases are normally heard by specialized state courts, not by federal courts. The job of a domestic-relations judge is probably the most difficult, and one of the most important, in the judicial system. Yet we members of the Supreme Court know virtually nothing about it. So why us? Why did we have to decide this difficult domestic-relations matter? Because it was embodied in a treaty, and interpreting treaties is our job. The need for a treaty like this is clear: Marriages between couples from different nations will only become more common. Yet our lack of expertise means a high possibility of error. Those groups interested in the subject will have to monitor court decisions with care and, in light of those decisions, stand ready to modify treaties when that seems necessary.

Nations are signing an increasing number of treaties, not simply bilateral but multinational ones, which create bureaucratic structures that administer treaty provisions, promulgate rules, and adjudicate disputes. Think not just of the United Nations and the European Union, but also of the World Trade Organization and the International Civil Aviation Organization. Many of the rules and decisions of those bureaucracies, as a matter of law or as a matter of practice, directly bind businesses or individual citizens from many different member nations. The Italian jurist Sabino Cassese, a great authority on the subject, estimates that there are more than 2,000 such organizations in the world. My own research, using State Department lists, suggests that the United States belongs to more than 800 of them. The World Trade Organization is relatively well known, but there is also the Commission for the Conservation of Southern Bluefin Tuna and the International Olive Council. And what about the organization that affects people far more than most others, icann—a nonprofit headquartered in Los Angeles that sets the rules for internet domains? Why, or how, do its rules bind individuals and nations?

Sometimes a national legislature approving the underlying treaty may also provide that the organization’s rules will take effect as national legislation. Sometimes the legislature will transform an individual rule into a statute. Sometimes an organization’s rule may interact with complex preexisting national statutes in a way that makes it binding. Sometimes the practical effect of a rule violation can itself require adherence to that rule. But in many other instances, when and how such rules are binding is unclear.

Many different forms of agreements besides treaties enable nations to work together to regulate commerce, finance, trade, health, safety, the environment, and security. These forms include meetings and communications among national regulatory administrators; or, as in the antitrust world, detailed enforcement agreements among national staffs; or, as in the case of the International Organization for Standardization, the development of voluntary standards for just about everything, which governmental authorities can reference in regulations or adopt; or, as in many international trade agreements, promises through which nations recognize and accept one another’s regulatory standards; or agreements entered into by an executive branch on its own authority; and so forth. Agreements and the like may be broad or narrow in scope. They may involve few nations or many nations, from the same or different parts of the world. The combinations and permutations are nearly endless.

These methods of attacking problems together will undoubtedly lead to legal disputes and then to court decisions. Constitutional courts in Germany and Italy have had to grapple with an important question: To what extent does a nation’s constitution grant its government the power to delegate legislative authority to an international body (for example, the European Union)? Each court considering the question has answered that the authority is broad, but not unlimited. Similarly, our American courts may have to decide how much legislative authority our Constitution permits the president and Congress to delegate to an international body. Unless that authority is broad, how are we to work with others to alleviate problems that affect more than one nation? But what are the limits on that authority? Article I of the U.S. Constitution says that “legislative powers” are “vested in a Congress,” not in the Commission for the Conservation of Southern Bluefin Tuna.

I do not have the answer to this question. I mention it to impart an appreciation of the significant legal questions, including numerous questions of local law, that have arisen or likely will arise in a world that needs international cooperation, and continues to value local customs, traditions, and community life.

Law is not a science. It is, at least in part, a humane discipline. It is not architecture or music, but like them, it embodies an ancient and universal human need, expressed in the biblical words “Justice, justice shall you pursue.” Law helps organize human beings in communities that allow them to obtain the benefits of living together productively and in peace. It is not surprising, therefore, that law faces the same factual circumstances as other realms and disciplines—namely, a world in which the international affects our daily lives.