tv [untitled] CSPAN April 5, 2010 2:30pm-3:00pm EDT
help show that we're having an important role. that helps them. it helps them establish that democracy and that protection for liberty. that's great. he says fine. he says write them a letter. [laughter] >> so i realize i'm not going to get anywhere in this political debate. there we are. ib, ic nothing wrong with it. it comes up sometimes. not all the time. we need sometimes. we just had an exchange with some canadian judges. there will be german judges from their supreme court coming in next year. we have been to india, and they have been over here, and the judges on luxembourg, and we talk to them and we have substantive meetings. it used be when i first joined the corps, we would have meetings like that and the agenda used to be, i called my dad can't. [laughter] >> i can do it this way. we do it that way. it's interesting. it isn't like that now. it absolutely isn't. you can have discussions on
issues and questions, and it isn't just i do this while i do it that way. you exchange information and to learn from each other. and that's normal. that happens. and no one is really going to tell me however good it sounds politically, no one will say i can't read what i want. i referred to law review articles in my decisions. so what i say and what others say, look, it doesn't mind is. we know it doesn't mind is. we understand is an american constitution, but why can't i read it. there are similar things that i do read and if i do real why don't i just refer to that fact. if you buy a lower review article, i become it is relevant i will cite it. so what's the problem? that's my view. and i made this wonderful argument on some occasions that i guarantee not to people get up and say but this is an american constitution, so why are you referring to foreign sources? i say that the wonderful political debate. it's good, but it is pretty irrelevant because when i do read things i can read what i
want. people also read what they want and what's really happening more and more is people are learning from each other. sometimes to reject what the other person has done. never to think it is by me. but that is sociological fact. not really a legal fact. and as far as the law is concerned it doesn't change that much except you might have a more informed opinion. for which i see nothing to complain about and i see no need to be apologetic. so that's what i say that's an important issue and it is political. but from a legal point of you i don't think it's overwhelmingly. and if some people don't want to read foreign opinions, fine, don't read them. if you want to, fine. if you want to refer to them, fine. that's the first thing but that's probably the only thing you'll read in the newspapers. but i want to go to category two, because i think category to, boring as it is, or will be when i explained it, it in fact is much more important. and what i mean by category two is simply look at the agenda,
look at the list of cases which have been fully considered by the supreme court of the united states in this year, lasser, compare them to 15, 20 years ago, and you will see an enormous growth, i believe, over time in the number of cases where everyone, no disagreement about this one, everyone on the court will certainly believe the knowledge of foreign law, perhaps international law, perhaps the law by the nation's is necessary or at least helpful to the decision. i went to one year about four years ago, and only a fully about 80 cases. i counted nine that involve some kind of issue like that. three of them were guantanamo, so treat them special. but six were, these were the kind of issues. one, a vitamin company in
ecuador buying vitamins from a dutch company wants to say that there is a dutch, an international cartel of vitamin manufacturers i've which the united states has one member, and the ecuador company wants to sue under our antitrust laws in new york. can they do it? that's not such an easy question. and, of course, why did they want to sue here? possible, i don't look into the motive, but we do have trouble damages plus attorneys fees which a lot of countries don't have. so there is some economic advantage to them so here. can they do it? i am telling you that was a tough question. and to know the answer to that question satisfactorily i think that i had to look at and know about the european antitrust law and had to know about it? because of a file briefs. and he deed canada files greece. and so did japan.
and if i go right yesterday, two days ago, we have a case in front of us involving the extraterritorial region of the securities and typhon decisions. what happens, a fraud committed in the united states which affects a buyer in europe or australia. we have please filed by france, by england, by australia. and they are not just reads as sometimes a you to become designed show that we, france, believe such and such. no, they are briefs that explain thoroughly what the reasoning is, where the conflicts are, why it is a problem. i mean, that's just in other words, a part of our diet. we had a case in which a company in los angeles wanted to get information in a federal court belong to another company in los angeles under a federal discovery statute to get the information, they want to read
their information. the second was as i don't want to give it to you. and they said but we want it so we can give it to the anti-cartel authorities in europe. and the europeans say we don't want it. and that we have again a lineup of countries telling us both ways. nobody thinks that's irrelevant. we have mrs. -- owes her name? one of the clinton paintings and she got them. does anybody know that? [inaudible] >> what? what was her name? oh, my goodness. i have reached an age. expect the a for most of things i remember very clearly never really happened. [laughter] >> she brings a suit in los angeles. her grandparents were, great occult, and the nazis took the painting from her and and it was hanging in a museum in indiana
and she thinks she's entitled to. a difficult question but what. a very difficult question. but the question that came up to the court was whether, if she sued in los angeles, the museum could assert a defense of sovereign entity. we are part of the government. now for technical reasons, they certainly were in the '40s. but in the '70s and 80s, they might fall within an exception, assume they did. for parts of the government engaged in commerce so they don't get the in duties. but the question was where to look to find out if it is sovereign entity. are the sovereign then are now and what was -- you get the idea. so i think i've found helpful case in paris in the court of appeals. this is a great case of christian viewer versus an ex-king. he didn't pay for the bills for his wife's dresses. so christian dior suit him. so he is certain sovereign entity. so the judge says wait a minute, you working.
your ex-king. these are not came, no sovereign entity. so i'd say thank you. that helps me decide this case. so i'm trying to get a picture of the world. or we had in that year of, we had in that era a case of nafta, where nafta has certain requirements as to what the president can do. and can congress pass a law that then makes it tougher to bring those trucks in from mexico, which they say is an environment based law. can they do that? at's a hard question. everybody thinks you're going to have to look to the treaties law and how those treaties work to resolve that. or we have the warsaw treaty which has to do with airline liability. the people who were most against using international law. they of course where you have a treaty, of course what you do is look at how other nations interpret it when you're looking at your own interpretation. you have to.
it's a normal. and what do we do, a very hard question that comes up several times we've had a. this year. we had a historic there's a statute called the alien tort statute and against anybody the right to bring a lawsuit in new york or any other place in the united states to recover money from anyone in the world who's violated international law and hurt them. now why did they passed that statute about 1790? thinking up ours. the rule was if you find a pirate, here's what to do. hang him. wherever he is, and by the way, before you hang him to get every cent he has. [laughter] >> a dallas-based -- river, this is not law i don't think i'm overstating. but the point is who are the pirates today? the statute is still there. what's the equivalent? and to really go into that is harder than you think. because it isn't just a question
of weighing the morality of the various bad actors. it is also the question of how to administer a legal system in a world where judges all over the world can start suing. it's amazes before judge all of the world and they start calling all kinds of people, using the example here of henry kissinger cities going to be called, the nasty why he is the example, but is always what he will go to jail in belgium. and so what the problem lately is, to have an -- title in the united states such that if it is generalized in a world without a supreme court that can harmonize things, that that will will work together with the other. a very, very tough question. and to answer those kinds of questions, of course you have to know something about international law, you have to know something about how laws of other countries work.
and that is the world today. so that's the problem that i'm putting to come which is a boring, detailed problem. that happens to and in the world that is internationally commerce but it happens more and more. and in a world where protections against what i call arbitrary behavior, which is shorthand for human rights. were more and more people all over the world are wanting and getting protections in that respect. it is something more and more american judges have to know about. now, i hate to make this confession, but i do not have universal knowledge. the way that i gain knowledge indicates is that the lawyers tell me, and the lawyers tell me in their briefs. and that means they have to know this. well, voters also don't have international law lunch, of everything. they have to learn how to look things up. that's what they learn in law
school. law school basically gives them some substance, quite a lot, and lessons in how to look things up. and it assembly a device by name decide to pretend law students that this is all a very exciting thing. [laughter] >> but this is what has to happen. you see, it is circular. and that means that the law schools, or you if you're taking a course in law, have to bring these kinds of law of other nations, how to look it up, law of international bodies, how to look it up. mike goodes, at this moment, great international lawyer, a brilliant minister lawyer in italy and he went and started counting and he got more than 1000 organizations today that are international in the sense that they make law, like the imf
or wto. they make law, rules, that are binding decisions that are binding on more than one nation. that is this world. and so i, my point is, that you have to teach things perhaps like that. i say to the protesters, don't have a special course of international law which is due to sort of a side issue. which people may or may not take. something of this is coming of course in contrast. something of it should come into the course, tort, or business law or other places. like we see already. all on the trying to show you is lots of people are involved, that these administrators as we are or professionals as we are, have much work to do. in this circular matter. which is, the courts, the judges, the lawyers, those who train them, and we say we are
willing to hear, we have to here. and that's the problem that i see as very boring perhaps, but terribly important. to give you a little taste, because it's a little bit more up topical and interesting of where this can come up, the same kind of problem. where it is a very interesting legal question, very difficult, and so technical and so hard that people don't write that much about it. so it was hard for me to learn about it, and yet if they had paid more attention to what went on in other countries, my job might have been is a feature. i will to you a case, unfortunately it arises in a very emotional context. which had to do with the death penalty. and that was the context, but the issue there is the same issue as excess where it has nothing to do with the death penalty. and has to do with commercial law. it has to do with copyright or
has to with intellectual property or inheritance. this is the problem. in article six of the constitution, it says, the constitution and the laws of the united states may pursue to the constitution and all treaties made or which should be made under the authority of the united states, all treaties made under the authority of the united states shall be the supreme law of the land. and the judges, in every state shall be bound thereby. anything in the constitution or laws of any state to the contrary notwithstanding. c.? see what it says? treaties are the supreme law. and the judges in every state shall be bound thereby. what does that mean? why not interpreted literally? it never has been introverted literally.
never. the question to put it in terms of most of his students afford a fair snow, is the question of whether a provision of the treaty automatically becomes the law of the united states. what is its internal effects? if we sign a treaty on trade, or in this case it happened to be, involved interpretation of a treaty that required police to tell an arrested person from a different country that he had a right to consider to consult his nation's council and the particular individuals were sentenced to death, and they were not told of that right to consult with their nation's council. in texas, well, it doesn't make a difference because it didn't really hurt. and they didn't know that. and then mexico brought a case in the international court in mexico and the international court says you have to have another hit because you signed a treaty and the treaty said you'd
do it. and you didn't do it. and what the remedy is, we interpret the treaty to mean that you have to give them another hit to find that if it made a difference. that was their interpretation. here's another treaty signed. that other treaty and that to you promise to do what we said interbreeding the first treaty. so question, do you see what is a general question? does that treaty would set we listen to them in we have to listen to them? is the treaty automatically part of the law of the united states? or it isn't the case that nobody is the law of the united states unless congress passes a statute saying this treaty is the law of the united states. you know the difference. the senate has to ratify a treaty, but a lot requires both houses to act. a little tougher to get through. this is different all over the world. england, you have to get parliament to pass a special law. you have to.
the treaty doesn't bind in less than they do. but wait a minute. england. a man who signed a treaty or got the queen to sign and also has a majority in parliament. so it isn't such a tough thing. remember jack kennedy's famous line? this is a slight deviation but it is relevant. he said that jack kennedy and harold m l1)cl0 millan, this is years ago, were in bermuda discussing the blue streak missile. and after their discussion, they were just talking and they were talking about the budget. and president kennedy was describing to the prime minister m l1)cl0 millan how he's going to work with congress to get it to andy help certain parts would in others when they can he said how to get your budget through? and he said get our budget through? he said we have a majority. he said we determine in the
cabinet with the budget will be and they pass it. and kennedy said what? he said he we you just decide in your government what it's going to be and to give it to them and they pass it? he says yes. he said my god. isn't anybody could run a country like that. [laughter] >> so, but that you see, that's england. that's england with a pretty thing but other countries have different systems. and what i did was i was indecent of the. i thought it was pretty hard that i went through, i got a law clerks to go through every case and decided in the supreme court that, and i read quite a few of them. but to go back to john marshall, and you discover, at least in my view that it was, that you look at a provision in the treaty, that you're talking about, and if that treaty provision is something that concerns courts come is the kind of thing that judges could administer, the
standards that there used to this kind of thing, which property goes where, then you don't need a separate law. that is called self executing. but if it is something that john marshall says, as addressed to to the public branches, such as war and peace, we're going to make peace, we'll take the marines out of nicaragua. whatever, that is addressed to the political branches. so there it is not self executing. is up up to the political branches. so i did a lot of work on that, dependencies and said this is what the law is and so forth. and so i thought that should be the rule. it's been the rule of this court for a long time. i ended up sort of like this is on a burned great story, a minister comes home from sunday and says to his wife, i preach a great sermon. and she said really? oh, yes, it was act as. what was it about?
it was all about how the rich should give to the poor. she's this really? yes. was a convicted? yes, it convinced the poor. [laughter] >> the point is i did not get a majority. i was in dissent so i was discussing this, hardly future academics have ever written about this. demonstrate britain about. there were a couple things pretty good. i was in a meeting where someone from, i think is the justice minister of the netherlands, and the french were there too and we're talking about these cases. and i said, you know, i have given, i said something just along the lines, i said was tough and it's hard to find out that said that so we have done for years. just like hornbook law, straight law in the netherlands that everybody knows that. and the one in france at the same thing. he said everybody knows that. and i couldn't find it. see, i was not -- and i don't
know if i would have persuaded anybody but at least it would have saved some time. i think that's an important issue. and why is it an important issue? is a very important, i think, because we have lots of treaties. we have all kinds of treaties. and there are vast numbers of multinational, multinational commercial treaties. most favorite nation can't's when you inherit law in land and i'll and you happen to be a national of germany and vice versa. involving trademarks, treaties involving all kinds of expect that contradict and they are change from time to time. and now it every time you change such a treaty, you have to run to congress and get a special law passed. it really is going to be hard, harder to get treaties enacted. so i flagged that as a problem. it's not an unsolvable problem
because congress could pass a general statute that set of criteria along the lines that john marshall suggested. but in the absence of doing that, we have now is a bit of an obstacle. and it is an obstacle i suspect it into my main thing, that it would've been easy to overcome if there had been more people interested in this. it had been more academics interested, more internatiinternational groups interested, so that the material would've been laid out there and say this is obvious law here in. so nicely with the theme is that the thing assembly this. there is a lot of work for us professionals to do. and to get involved in the great debate about whether or not we should refer to some countries constitutional decision, it is interesting, but it isn't the heart of the matter. because what are we like? well, i would've made an emotional difference to me was when sandra o'connor and i were
in india to visit their court on the day of 9/11. amazing. and we were there and we met there chief justice just that afternoon. and we were treated, i mean, they were incredibly sympathetic people that we met. and the bar and the bench and the others, and i, my thought was and why it's relevant is the real division in the world is not among people from different nations. the division is between those who accept the force of reason and what all the other virtues that imagine, and and those who just don't. and those indian our members, we are the same. and what isn't we're working towards? well, as i see it as sort of like, i used to have a latin class, bees and virgil has. has. they're busy in their field and
what is a terrible disaster like 9/11, you see them afterwards that they are out there repairing. they are after repairing things. and i'm giving you just emotional impressions. but what made an emotional impression upon me, when i was at a meeting in international meeting to celebrate the, i think the 100 -- 200 versa of the french civil code. so i sat there. i was our delicate. i had today's which everybody got up and praised the french civil code, which i am sure deserves praising. afterwards they said that we will have some question. these were the questions. that's what interests me into law. a man got up and said we have in working for the last 20 years to make certain that women were treated equally by the civil law. so why is it in today's there wasn't wasn't one woman
speaking? second question, well, we joined europe. and what do we need now? how does their laundry late to this what do we need a new code quick to we need a european civil code? do we need some kind of code that will integrate the two codes? what do we do in this world that is interdependent? third question, how do we teach these values, which are the ones i mentioned, democracy, freedom, austeritprosperity, conversatiod discussion, et cetera. these guys embedded in the civil code, how do we teach them to our children? our grandchildren? how do we pass them on? for the question, that's mine, where am i? am i in paris or am i in new york or des moines or san francisco?
because my goodness, if you think about those questions, i could have gotten him in any city in this country. so that's where we are. same problems, same areas of response. and we as i say, are the professionals. well, i did learn something from senator kennedy, or one of the things that made an emotional impression was this. when he had his staff, year, 500 at that time, who all met at hyannis. it was some kind of event and he was saying something that his father had told him. and he said his father told him when he was a young, what did you do? not articulate. not articulate. but this is what you do is you give people around you, who have different talents, different abilities, not necessarily yours, and you get them working together and they help. that's it. they help. who do they help? they help each other. they help you.
button to help something that is more important than either. they work for something. and it seems to me that's where we are. we are the professions. it's our job to get together and help. thanks. [applause] >> okay, i told you that he was renowned as a teacher, and i rest that point. we are going to be true to a question and answer period, and we decide that for this occasion, we would start with two professions to post the first two questions. and the first will be from of course our professor of international law, ruth, who is the edward be professor of
international law and diplomacy, and director of international law and organizations program here. professor? >> well, that was really contrail. that was fantastic though. let me make one statement and then a question. you can do kind of a jefferson powell ritualism about original as an argument. that if you look back in the early days of the republic, when there was less positive legal authority in this country, you would on the supreme court in state court citing moving toward and the law of nature of nations because there was less positive law. so you can see the more original list you are, the more international you should be. but still my question, based upon a dodgers on the human rights committee which is the grace education, granular competitive while i have ever had. they do do it carefully elsewhere. . .