In this original, far-reaching, and timely book, Justice Stephen Breyer examines the work of the Supreme Court of the United States in an increasingly interconnected world, a world in which all sorts of activity, both public and private—from the conduct of national security policy to the conduct of international trade—obliges the Court to understand and consider circumstances beyond America’s borders. It is a world of instant communications, lightning-fast commerce, and shared problems (like public health threats and environmental degradation), and it is one in which the lives of Americans are routinely linked ever more pervasively to those of people in foreign lands. Indeed, at a moment when anyone may engage in direct transactions internationally for services previously bought and sold only locally (lodging, for instance, through online sites), it has become clear that, even in ordinary matters, judicial awareness can no longer stop at the water’s edge. To trace how foreign considerations have come to inform the thinking of the Court, Justice Breyer begins with that area of the law in which they have always figured national security in its constitutional dimension—how should the Court balance this imperative with others, chiefly the protection of basic liberties, in its review of presidential and congressional actions? He goes on to show that as the world has grown steadily “smaller,” the Court’s horizons have inevitably it has been obliged to consider a great many more matters that now cross borders. What is the geographical reach of an American statute concerning, say, securities fraud, antitrust violations, or copyright protections? And in deciding such matters, can the Court interpret American laws so that they might work more efficiently with similar laws in other nations?While Americans must necessarily determine their own laws through democratic process, increasingly, the smooth operation of American law—and, by extension, the advancement of American interests and values—depends on its working in harmony with that of other jurisdictions. Justice Breyer describes how the aim of cultivating such harmony, as well as the expansion of the rule of law overall, with its attendant benefits, has drawn American jurists into the relatively new role of “constitutional diplomats,” a little remarked but increasingly important job for them in this fast-changing world. Written with unique authority and perspective, The Court and the World reveals an emergent reality few Americans observe directly but one that affects the life of every one of us. Here is an invaluable understanding for lawyers and non-lawyers alike.
Stephen Gerald Breyer is a retired Associate Justice of the U.S. Supreme Court. Appointed by Democratic President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court.
Following a clerkship with Supreme Court Associate Justice Arthur Goldberg in 1964, Breyer became well-known as a law professor and lecturer at Harvard Law School starting in 1967. There he specialized in the area of administrative law, writing a number of influential text books that remain in use today. He held other prominent positions before being nominated for the Supreme Court, including special assistant to the United States Assistant Attorney General for Antitrust, and assistant special prosecutor on the Watergate Special Prosecution Force in 1973.
In his 2005 book Active Liberty, Breyer made his first attempt to systematically lay out his views on legal theory, arguing that the judiciary should seek to resolve issues so as best to encourage popular participation in governmental decisions.
Oh, right. Now I remember why graduating from law school was one of the happiest days of my life, because the reading was really, really dense and often took three pages to say what could have been stated in a page, if not a paragraph.
The Court and the World is everything I always hated about reading Supreme Court cases, but I’m very glad I read the book. Justice Breyer makes good arguments – and uses some pretty great examples – to explain why international law is not scary or a threat to American sovereignty but rather a way to improve our laws and embrace our increasingly global world in a way that benefits America and its citizens.
As someone who has long been frustrated by how many lawyers – the supposed experts! – misunderstand international law and gotten into more than one debate about how international law should be a component of bar exams so that lawyers would stop being so stupid about it, I'm thrilled that Justice Breyer addressed the issue in a book (and not merely a Supreme Court decision). I just wish the book were less dense, because much as I enjoyed it, it was enough of a slog that recommending it to someone sort of feels like saying ‘I hate you.’
The Court and the World is a book for people with some level of legal knowledge or training. To that end, I’m glad I had some background in international law because it occasionally helped me parse some of his arguments. My guess is that most of the audience will be academics or people like myself who should probably find better hobbies.
On the plus side, the dense, academic nature of the book guarantees it’s likely to be popular in law review circles for years, and given the strength of Justice Breyer’s arguments, that’s a good thing. Let’s hope that, in whatever small way, The Court and the World helps to educate lawyers about the realities of international law. Recommended. Maybe.
A very interesting and timely book about globalism and American Law. At times it felt a bit like a law school casebook but much more interesting. Justice Breyer is a very good writer and reveals his intellect, curiosity and comprehensively inquiring mind in this book. The book is a profound analysis of many jurisprudential issues. I doubt many "average" citizens would read this but I would highly recommend this book, or excerpts from it, for any high school civics class.
This book is not an autobiography but a discussion of a long term controversy in law. Breyer discuss the question, does foreign law have a place in interpreting the American Constitution? Four of Breyer’s eight fellow justices say no. They are Chief Justice John Roberts and associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito. They see it as a threat to the country’s tradition of democratic self governance on the other side, Breyer and three of his colleagues Ruth B. Ginsburg, Anthony Kennedy and Elena Kagan have explicitly endorsed some version of the practice.
Breyer contends that events in the world have affectively resolved the foreign law controversy. He presents cases and discusses the various implications over who has jurisdiction and where laws or regulations overlap or whose laws applied to the cases these cases cover everything from copyright law to trade agreements and also multinational corporation.
Breyer states that our increasingly interconnected world and globalization has made engagement with foreign laws and international affairs simply unavoidable. Breyer says judges need to understand and engage with foreign and international law to do otherwise is to try to navigate the globe with a blindfold. Breyer notes that transnational organization have already begun to produce regulations in areas as diverse as banking supervision, trucking and internet domain name registration. Breyer says in democracies courts specialize in problem solving. Judicial isolationism would make it more difficult for judges to address the kinds of problems we need to solve in the ever small world of the 21st century. After reading this book I see the need for the United Nations to add a World Supreme Court to solve international legal problems. I read this as an audiobook downloaded from Audible. Justice Breyer narrated his own book.
« La Cour suprême, le droit américain et le monde » est le troisième ouvrage du juge Breyer publié en France chez Odile Jacob – à un prix qui risque hélas d’en limiter la diffusion. Il évoque des décisions rendues par la Cour suprême américaine – où il a été nommé par W. Clinton en 1994 – ayant une dimension internationale. Soit qu’il s’agisse pour la Cour de statuer sur l’application extraterritoriale des lois américaines (cette partie est joliment titrée « Chez soi à l’étranger »). Soit qu’il s’agisse d’interpréter des accords internationaux dont la méconnaissance des stipulations est invoquée devant elle.
L’ouvrage s’ouvre par un chapitre consacré à une autre question : le contrôle du juge constitutionnel sur des menaces étrangères pesant sur la sécurité nationale. Le sujet est d’une actualité brûlante depuis le 11-septembre. Mais il ne date pas d’hier. Depuis toujours, le juge s’est posé la question des limites de son contrôle sur les actes de l’exécutif les plus sensibles. En France, il applique la théorie des actes de gouvernement. Aux Etats-Unis, mettant en œuvre la maxime cicéronienne (« les lois se taisent au milieu des armes »), il montre une grande déférence à l’égard du « maquis du politique » (Political thicket). Mais la jurisprudence de la Cour suprême américaine, comme celle du Conseil d’Etat en France, a évolué, réduisant à peau de chagrin le champ des « questions politiques ». Le temps n’est plus où elle fermait les yeux sur le cantonnement dans des camps de prisonniers de milliers de ressortissants japonais (Korematsu, 1944). Par une série de décisions rendues en 2004, 2006 et 2008 (Rasul, Hamdi, Hamdan, Boumediene) sur des plaintes formées par des prisonniers retenus à Guantanamo, elle a soumis à un contrôle effectif les décisions de l’exécutif restreignant les libertés publiques au nom de la sécurité nationale.
Ce prologue, aussi intéressant soit-il, nous écarte du vrai sujet du livre : l’articulation du droit américain, du droit international et des droits étrangers. Il ne s’agit plus, même pour la première puissance au monde, d’un choix, mais d’une nécessité : le temps n’est plus où le juge, fût-il suprême, pouvait juger des affaires dont il était saisi sans tenir compte de la réalité du monde extérieur. Parce qu’une loi du Congrès votée en 1789, l’Alien Tort Statute, étend aux étrangers les principes de la responsabilité civile, la Cour suprême doit statuer sur la plainte dirigée contre Shell à raison des dommages que cette société aurait causée dans le delta du Niger (Kiobel, 2003). Parce que les Etats-Unis sont partie à la Convention de Vienne de 1963 sur les relations consulaires, la Cour doit se demander si la carence des autorités policières à informer, lors de leur arrestation, des ressortissants mexicains de leur droit de solliciter l’assistance de leur consul a vicié la procédure conduisant à leur condamnation (Sanchez-Llamas, 2206 et Medellin, 2008).
Le juge Breyer prône de régler ces affaires dans le respect de la « courtoisie internationale », c’est-à-dire d’éviter que des droits interne et étranger ne placent un même individu face à des obligations contradictoires. Sa position n’a pas toujours prévalu. D’importantes décisions ont été adoptées sans sa voix ; mais le système américain des opinions discordantes, inconnu en France, l’autorise à expliquer ses désaccords. Dirigée par une majorité conservatrice de juges nommés par des présidents républicains, la Cour suprême, dans sa composition actuelle, n’est pas internationaliste. L’ouvrage du juge Breyer doit se lire autant comme un essai de vulgarisation sur la jurisprudence de la Cour suprême qu’un plaidoyer destiné au public américain en faveur d’une plus large ouverture au monde.
well maybe a 3.7. This is not an easy book for a non-lawyer type to read, but overall I appreciated the very sane, calm mind of the man who wrote it, and in these dark times appreciated his optimism, and his thoughts on the rule of law in this country and how it is changing to reflect the world.
This book was written by U.S. Supreme Court Justice Stephen Breyer. It was written largely in response to heavy criticism lodged against him and other members of the Court for considering and citing foreign judicial decisions when rendering opinions regarding cases brought before the Supreme Court. These criticisms were brought, largely, by conservative members of the political establishment, along with right-leaning news media sources and ill-informed journalists. Hopefully, reading this book will enlighten them.
I found the book to be a well-written, well-reasoned and compelling argument as to why the US Supreme Court must take into consideration the laws and legal decisions of foreign countries when making rulings regarding American laws that pertain to events that take place, either wholly or partially, beyond the shores of the United States, and in places where foreign laws might also govern. The author presents lucid and convincing examples to support his philosophy that it is entirely proper for the Court to do so. In my opinion, Justice Breyer made his case eloquently and convincingly.
On January 13, 2005, Justice Breyer debated this issue with the late Justice Antonin Scalia at the U.S. Association of Constitutional Law at American University in Washington, D.C. The title of the debate was The Constitutional Relevance of Foreign Court Decisions. The discussion was moderated by Norman Dorsen, a professor at the New York University School of Law who specializes in Constitutional Law, Civil Liberties, and Comparative Constitutional Law. The full transcript of the debate can be found at http://www.freerepublic.com/focus/f-n... The two justices took opposing positions on the matter, and they answered questions from attendees.
In the book, Justice Breyer presents compelling arguments regarding why it is necessary for American judges to consider foreign law when deciding cases under our laws. He details provisions of the Alien Tort Statute (ATS), which was enacted by the First Congress of the United States in the same year that the U.S. Constitution was enacted – 1789. In the Alien Tort Statute, the Congress deliberately set forth a law that requires the coordination of our country’s laws with those of foreign countries. Many cases have been brought before the circuit courts and the U.S. Supreme Court over the years to adjudicate disputed matters that are governed by the ATS. Justice Breyer makes a strong case for the proposal that the ATS ties the American court system to the courts and legal systems of the rest of the world. He cites four compelling reasons for this: 1.) Legitimacy, 2.) Capacity, 3.) Interference, and 4.) Universality. He goes on to explain these four principles in great detail.
In several places in the book, the author repeats the words of wisdom first offered by James Madison: the American Constitution is a charter of power granted by liberty, rather than a charter of liberty granted by power (as was typically found in the constitutions of Europe). He points out that, in the United States, it is the people, and not a central authority, who is the source of legitimate federal power.
In one example, the Abbott case, which was brought under the Alien Tort Statute, Justice Breyer explains why the U.S. Supreme Court had to take into consideration the laws of the country of Chile after an American couple with an American-born son separated and divorced in Chile with a divorce and child custody agreement executed under Chilean law. The wife subsequently took the child and fled to Texas in the United States, and the husband sued under the Alien Tort Statute. The case wound up in the U.S. Supreme Court, where the justices had to decide whether Chilean law governed an American child who was living in the United States. I won’t tell you how the Court ruled. You should read the book to learn the outcome of this interesting case.
International treaties can affect Americans. The author describes some cases that were brought in the International Court of Justice (ICJ), in which the United States was a treaty participant for a number of years. He lists other international judicial bodies whose rulings can affect Americans and American law. International arbitration agreements can very much affect Americans. Surprisingly, an arbitration agreement between entities of two different foreign countries, but which was executed and signed in Washington, D.C., required a ruling by the U.S. Supreme Court. The Court’s decision had to be congruent with all applicable law.
Justice Breyer has filled this book with concrete and compelling examples of how foreign law and judicial cases can, and do, affect the rulings of American courts, and that they have been doing so for a very long time. His reasoning dispels the notion that U.S. courts can legitimately decide all cases with no references outside American case law and the U.S. Constitution. I have been convinced. He clearly is in possession of a towering intellect, and has a broader view of the law than many other judges. This is the 21st Century. It is regressive thinking to believe that American law can stand alone, dependent only on a document that was written and adopted more than 225 years ago. Justice Breyer has convincingly presented a case for U.S. jurisprudence to enter the 21st Century, and to resist the temptation to regress to a prior era. This book is highly informative and extremely well-researched. If you care about our system of laws, our highest-level court, and what we might expect in the future, you will benefit from reading this book.
The question isn’t whether American courts will or should consider foreign law, but how they will do so. As Justice Stephen Breyer relates in this book, the U.S. Supreme Court has been using foreign law in its decisions since the early days of the republic, and will continue to do so. Most of this book covers uncontroversial ground. It is mostly descriptive, explaining how the Court has used foreign law in the past. This is not a manifesto about using foreign law to remake American law, but an explanation of why American courts must engage with foreign law simply because the world is more connected than ever before and gets more connected every day.
Part I deals with national security and individual rights. It discusses the most important and interesting cases, including the Guantanamo Bay detainees cases. This section does not deal with foreign law so much as it deals with how our law deals with foreign threats. Breyer does a very good job of explaining the questions and arguments in these cases. One of the more interesting parts is his suggestion that American courts can look to other countries’ experience with certain problems to see what is workable in balancing rights and security. As an example, he mentions how the U.K., Spain, and Israel afford dangerous detainees with legal counsel while trying to ensure that the lawyer is not used to pass messages or jeopardize classified information.
Part II is about how courts determine the applicability of American law to events that happen outside of American territory. For example, can a person sue a company in an American court for violating anti-trust law, when the alleged illegal conduct took place in another country? How about suing a person who now lives in the U.S. for torturing your brother in South America? These are complex questions that require the courts to scrutinize American statutes while also considering how other countries deal with the same questions. Do other countries allow lawsuits against companies for conduct that occurred in the U.S.? In addition, the court may need to consider what effect its ruling will have on relations between the U.S. and the other countries involved. The State Department may raise legal and political arguments, as may foreign governments. It is a complicated and fascinating set of problems, and Justice Breyer explains it very well.
Part III is probably the most likely to spark disagreement. This part deals with how courts interpret and enforce international agreements. This is much more involved than just formal treaties. As Breyer explains, countries have established thousands of agreements that cover just about every aspect of international trade and other subjects. There are international tribunals to interpret treaties, international groups to set common standards, arbitration agreements to settle business disputes, and much more. These are set up by treaties, executive agreements, and sometimes just by cooperation between government ministries and departments with their foreign counterparts. So, how does an American court interpret all of these things when they are raised in a lawsuit? Again, national governments may get involved and the courts will have to consider much more than just the law – how will the court’s ruling affect international relations and trade relationships? How much authority can an informal arrangement confer? How does a treaty affect state laws?
Finally, Part IV considers the judge as a diplomat. This may seem an odd idea, but judges already travel and meet together on a regular basis. They meet formally and informally to discuss court administration, the rule of law, judicial cooperation across borders, and substantive areas of law, like antitrust and intellectual property – areas that cross borders quite easily. Breyer’s main point here is that this consultation is inevitable and good. In a hyper-connected word, judges need to understand how other countries administer justice.
Overall, this is an uncontroversial book because it is mostly descriptive rather than prescriptive. It teaches a lot about the complex realities that face courts today. It is not a great source if you want to understand the debate over American courts using foreign law to interpret the federal constitution, a much more controversial topic. But it is very interesting and instructive in explaining what issues courts must resolve and how, in many cases, they must consider more than just their domestic law to render decisions.
My father bought this book as a gift for me after I graduated my JD program because he thought that I would like it based on a review he read in the New York Times. I truly appreciated the book because it distilled the majority of the challenging cases and concepts that we grappled with in my upper division International Law and Comparative Law classes, as well as my lower division Constitutional Law class, into relatively easy to understand take aways. I easily could name drop at least two dozen important international law cases here. Justice Breyer even handedly presented both the rationale of the majority and the dissenting opinions (especially when he wrote the dissenting opinion) so that the reader could decide for herself which was the more compelling argument. I appreciated the way that the book was topically organized, and how each topic was linked to each other. An important point to note is that even though the publishing information says the book is 400 pages long, it is closer to 280 pages of readable text, with the balance being endnotes and index. I am definitely going to recommend this book to both my International Law professor and my Comparative Law professor for consideration as supplemental reading in their courses because the book adds so much context to the basic understanding of reading the case itself. I personally would have likely done better in those classes had I this book as a reference. Overall, I am grateful that I invested the time in reading it, even after graduation.
This is a very technical look at the global influences on American law. I'm giving it two stars because it was much more pedantic and dense than I was expecting. More suited to law school than lay readers.
In contrast to Immortal Chess - only for law nerds. A thoughtful treatment on the evolution of the law due to the shrinking of our planet. 3.5 of 5 stars.
This book by Justice Breyer reads like a conversation with a learned friend.
Justice Breyer acknowledges that a book about the law might sound esoteric and read ploddingly; perhaps in doing so, he avoids the pitfalls of talking-down-to or talking-over his reader. He tells what he is going to say and how he is going to do it; he says what he has to say, illlustrating the discussion with court decisions and history; he reminds what he has said; and he weaves each of the parts into a whole.
In this book, his premise is that the Court has a role in the world. Divided into four section, with chapters in each, he begins with Cicero (The Past is Prologue/The Constitution, National Security and Individual Rights) and travels (At Home Abroad/The Foreign Reach of American Statutory Law; Beyond Our Shores/International Agreements) to reach the conclusion (The Judge As Diplomat), and Epilogue.
In the Prologue, Justice Breyer concludes with the hope, "...that an understanding of the nature of our current engagement with foreigh matters will perlsuade the reader that the best way to preserve American constitutional values (a major objective that I hold in common with those who fear the influence of foreign law) is to meet the challenges that the world, as reflected in concrete cases on our docket, actually presents. Doing so necessarily requires greater, not less, awareness of what is happening around us." (at 8).
They say this book was not meant for the average citizen. I say, though I am an average citizen, Stephen Breyer made a compelling argument - the United States cannot exist in isolation from the rest of the world.
Technical court procedures and disputes over constitutional law remain abstruse, many legal frameworks were difficult to grasp without a prior understanding, but the general impact of the cases from his docket on the rule of law, combined with Breyer's decades of experience and observance of growing international organizations like NATO, World Economic Forum, ICJ, convinces the average reader like myself that there is an ever-growing need "on the part of the courts and the legal profession to understand both the legal and the practical realities elsewhere in the world if we are to preserve our basic American values."
A well researched and reasoned book on the importance of our judicial system addressing international law alongside our own Constitution. As Justice Breyer writes in the postscript (perhaps the highlight of the book for me); "But the world has shrunk considerably since the Founding, particularly during the past few decades. We have seen how development which reflects changes in technology, communications, and political organization, as well as the rise of problems that ignore national boundaries, has made it necessary for the Court ever more frequently to consider matters of international law and the laws of other nations."
first, I love listening to Justice Breyer in SCOTUS oral arguments, and so having the audiobook of this was a treat. He does a good job, IMNSHO, of making the case of why courts should look beyond the shores of the US and learn how the world handles situations that come up in cases. He takes several lines of cases, explains the history and background, and then ties it all together in the end.
Yes - you have to be a politics/constitution geek. And if you are, I suspect you'll enjoy. Or - if you are more of a Scalia fan, you'll probably burn the book. :-)
There were sections that were overly dry, but that's not my main criticism. The handful of cases he discussed that I further researched seemed to have been... somewhat misrepresented. For example, he neglected to mention that in Kirtsaeng v. John Wiley & Sons, Inc, Kirtsaeng had sold about $1.2 million worth of textbooks. Breyer's summary made it seem like he'd sold a couple dozen or so books. Was this material to the case? Perhaps not but it still seemed a deceptive exclusion.
There were enough examples of this that I found it disconcerting.
I enjoyed this book more than I anticipated. While I disagree with Breyer a fair bit, I found this book to be a relatively thoughtful examination of the Court’s role in “the world” mostly designed to facilitate discussion, opening the conversation by posing questions, rather than a heavy-handed attempt to convince the reader of his own view—of course, he’s open about his own views.
Additionally, it’s a good refresher on some decisions dealing with foreign issues rarely discussed in the general Con Law discourse.
As an international law scholar in the U.S., this book was right up my alley and mostly review. Most of the book is summaries of key cases that show the way SCOTUS already applies international and foreign law in all sorts of contexts. There wasn't much new (for me), but I appreciated the ease of his explanations of all these cases and the fundamental framing/argument. Would recommend as easily accessible and important reading for non-lawyers or non-internationalists.
This book was kind of a slog to get through but its central message is important. As a Canadian, I find the controversy regarding the use and acceptance of foreign law a bit surprising. Appellate courts in Canada are quite comfortable doing comparative law work. They’ll even adopt a foreign rule of law if it is superior.
Fiel a su estilo, el ministro Breyer hace una revisión de distintos casos resueltos por la Suprema Corte de los Estados Unidos (p.e. en materia como seguridad nacional o arbitraje) para hacer una crítica a la forma de resolución de controversias, esencialmente, por su visión al interior y no hacia legislación transnacional. Cansado, creo que hay mejores del autor.
An interesting take on the intersection of US and international or foreign law. Written for the lay reader although it tends to privilege a legal background in terms or understanding the core issues raised.
I struggled through the first third of this book, written more as an international law textbook than a summary of decisions. I gave up after 115 pages, so I can't say that it's good or bad or that it doesn't end well. I can say only that it didn't hold my interest.
Rounded up to a 3.5. I know I’ve said I’d review the other books I’ve read, but it’s probably unlikely I’ll go back and review them ALL. I do plan on reviewing this one and The Maidens tonight, though.
Probably better suited to serious scholars of the supreme court. Gives insight into how justice Breyer sees/saw the law and the role of the supreme court, but in light of the Roberts court it feels woefully outdated.
While I respect Justice Breyer's jurisprudence, I have to say I'm not a fan of his writing. This is the second book I've read that he has authored and I found it to be lackluster.
It seems Justice Breyer is an idealist. I am, too. Our justice system is a beautiful and incredible indispensable mess. And globalization is super exciting.