The Court and the World: American Law and the New Global Realities
By Stephen Breyer
Alfred A. Knopf, New York, 2015
This book is about the increasing interplay between the Supreme Court of the United States and the people, laws and courts of foreign countries. And it’s written by an extremely well-qualified expert, Stephen Breyer, Associate Justice of said US Supreme Court.
The Court and the World covers three major areas where the US Supreme Court has become increasingly drawn into “foreign entanglements.”
First, how does the Court protect Americans’ civil liberties in the face of national security threats from abroad? What constitutional limits govern how far the President or Congress can go in exercising their powers to protect America from foreign actors?
Second, when and how does US law apply to people or activities outside the US? For example, do anti-trust laws extend to corporations’ activities outside the US? And how can our laws be applied in a way that’s in harmony with the laws and procedures of other countries?
The third area concerns international treaties and agreements. How should these be interpreted and enforced when, for example, they might conflict with US law, or relate to areas that the Constitution delegates to State governments?
In each of these areas, Breyer picks a few representative cases, traces their history and relevant legal precedents, and discusses how the Court has had to adapt over the years to a caseload with an increasingly international dimension. His analysis is detailed, thorough and forward looking. He makes it clear that this trend is not going away. Global interdependence, cheaper travel and technological innovation make personal and commercial interactions across borders more and more common. This in turn makes cross-border disputes more common, disputes which the Court will be asked to settle.
Breyer also argues that there are useful things to be learned from foreign laws and legal practices and that we shouldn’t reject them simply because they’re foreign.
Alas, the book is dry. Soporifically dry. Perhaps I should have known better. Perhaps the book is intended more for the legal profession than for a general audience. Perhaps I should have just invoked the One Hundred Page Rule. But like I said, it’s an important topic by a respected jurist, so I persisted.
It didn’t have to be this way. When you read the written decisions of leading judges – if you’re so inclined – you’ll often find they’re infused with the personalities and passions of their authors. Agree with them or not, the writings of Supreme Court Justice Antonin Scalia or Judge Richard Posner of the 7th Circuit Court of Appeals are lively and sometimes even entertaining.
I haven’t read any of Breyer’s other books, but this one is certainly an academic treatise in style and tone. Caveat lector.