The Law of the Lands
How the U.S. Supreme Court Engages With the World
Justice Stephen Breyer of the U.S. Supreme Court has long been known as the most cosmopolitan justice—the justice most familiar with the laws of other nations and most concerned with how U.S. courts can cope with those laws when they impinge on American national interests or are invoked in U.S. courts. In his new book, The Court and the World, he sets forth his views on the interaction between the U.S. legal system and the legal systems of other countries.
The book is insightful, clearly written, well informed, free of legal jargon, and accessible to a lay audience as well as informative to lawyers, judges, and law professors. Its principal weakness is its almost exclusive focus on decisions by the Supreme Court. The Court is an atypical judicial body in that it tends to decide relatively few cases in most of the areas of its jurisdiction, including the intersection between U.S. and foreign law. Those few cases tend to generate disagreement within the Court and uncertainty as to what exactly the law in a given area should be. It’s difficult to get a coherent sense of a body of law from a handful of Supreme Court cases; it might have been better to borrow material from summaries in treatises of the relevant legal doctrines and their applications.
But Breyer’s focus on the Supreme Court does cast light on what Supreme Court justices have learned and can learn from foreign legal practices and what foreign judges can learn in return. As Breyer explains, the Supreme Court has evolved a complex set of rules for deciding constitutional cases, especially those involving the application of the free-speech clause of the First Amendment. Such rules are not derived or derivable from the text of the U.S. Constitution, but what is more objectionable about them is that they are nonsense—although, of course, Breyer does not characterize them in that way. The rules go by such namesRead the full article on ForeignAffairs.com