The Atlantic

America’s Courts Can’t Ignore the World

The laws of other countries have a bearing on America’s own, writes Stephen Breyer—and the highest court in the land needs to take heed.
Source: New Studio

Editor’s Note: This article is part of a series that attempts to answer the question: Is democracy dying?

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 globalization, interdependence, 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.

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.

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

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