A fascinating account of how an increasingly globalized and interdependent world influences the deliberations of America's highest court, by the sitting justice and author of Making Our Democracy Work and Active Liberty.
In this original, far-reaching, and timely book, Justice Stephen Breyer examines the work of SCOTUS in an increasingly interconnected world, a world in which all sorts of public and private activity - from the conduct of national security policy to the conduct of international trade - obliges the Court to consider and understand circumstances beyond America's borders. At a time when ordinary citizens may book international lodging directly through online sites, it has become clear that 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 prominently: 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 how the Court has also been obliged to determine the application of American law in international contexts. What, for instance, is the geographical reach of an American statute concerning securities fraud or an antitrust law?
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. Breyer describes how the aim of cultivating such harmony, as well as the expansion of the rule of law overall, has drawn American jurists into the relatively new role of "constitutional diplomats", a little remarked but increasingly important job for them in this still changing world.
©2015 Stephen Breyer (P)2015 Random House Audio
But who would expect "racy" from this author? This is a book whose time has come, and a very welcome addition to support our evolving thinking about the (ever-more-sprawlingly-networked) world and the USA's place in it. I agree wholeheartedly with the basic thesis that judges cannot erect an artificial set of blinders preventing them from looking at various extraterritorial sources (and impacts) in today's world. And this introduces its own problems, such as the quality of information coming in for consideration, versus, say, the classic model of evidence developed in a fully adversarial court situated here. But I am ready to think the judiciary is smart enough to sort this out, and weigh things suitably. And the litigating parties have incentives to be sure the inputs from abroad to the courts are balanced.
I appreciate the case histories here -- as a professor in this field.
I am an avid eclectic reader.
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. Justice Breyer narrated his own book.
I am rating here the audio version of the book. The book itself is a great book, but the audiobook has the added advantage of being narrated by its own author. Many good books get ruined in the audio version because of the narrator’s voice. But Justice Breyer happens to have a pleasant voice, with a clear diction and a didactic delivery. It is as if you were listening to him teaching a class.
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