Linnaean Taxonomy and Globalized Law.

• Author: Krotoszynski, Ronald J., Jr.

THE COURT AND THE WORLD: AMERICAN LAW AND THE NEW GLOBAL REALITIES. By Stephen Breyer. New York: Andrew A. Knopf. 2015. Pp. 8, 284. $27.95.

INTRODUCTION

In the mid-seventeen hundreds, Carl Linnaeus, the famed Swedish botanist, invented the system of binomial nomenclature to identify and classify all living organisms. (1) Binomial nomenclature involves associating all living things, plants and animals alike, with a name that indicates the genus and species of the organism. (2) Linnaeus believed, correctly, that in order to understand the natural world, one first had to organize and classify living organisms for future study.

Although law is not biology, properly identifying and classifying categories of legal phenomena is no less important to understanding similarities and differences in the legal world than it is in the natural world. (3) This is particularly true in the context of comparative law; to borrow a commonplace metaphor, one must be sure that a comparative law exercise compares apples to apples, rather than apples to oranges. (4) So too, insofar as our domestic law is becoming increasingly globalized--in response to economic, political, and social globalization--it is essential to specify the particular modalities of globalization that are at work. Positing the existence of "legal globalization" in highly generic terms will preclude a careful observer from testing the persuasive force of the claim that legal globalization is taking place in the United States (and, more broadly, across many other national legal systems).

Framed in terms of Linnaeus and his system of binomial taxonomy, (5) in order to understand the globalization of law, both in the United States and abroad, one must first make a serious effort to identify and classify different types of interactions among and between domestic and international legal systems--including, but not limited to, the transplantation of legal rules and ideas among and between local legal systems. (6) This Review constitutes an initial effort to do just this: to identify, disentangle, and name different kinds of contemporary, legal globalization. In undertaking this effort, I will give sustained and focused attention to Justice Stephen Breyer's provocative new book, The Court and the World: American Law and the New Global Realities. (7) Justice Breyer mounts a highly persuasive case that the question for debate today is not whether domestic courts in the United States will consider foreign and international law; instead, he posits that globalization already is a reality in many important legal contexts. He observes that "[m]ore and more, cases before the Court involve foreign activity" (pp. 3-4) and sees "new challenges imposed by an ever more interdependent world" (p. 4). Ultimately, Breyer hopes that

an understanding of the nature of our current engagement with foreign matters will persuade 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 ... actually presents, (p. 8) If one properly disentangles various strands of transnational judicial engagement, however, the case for globalization is weakest in the context of reading and applying the U.S. Constitution. (8) This is so precisely because globalizing domestic constitutional law clearly reflects an act of judicial will rather than an act born of decisional necessity. (9) Just as the Supreme Court should avoid deciding constitutional questions absent some clear need to do so to resolve a case at bar, (10) justices should abjure consideration of foreign and international law absent a clear need for engaging such materials in the pages of the U.S. Reports.

This Review will proceed in four parts. Part I provides an overview of Justice Breyer's important new book, The Court and the World, and sketches his main arguments, ideas, and proofs. The Court and the World seeks to convince the reader of two main points. First, Justice Breyer argues that the domestic courts must consider foreign and international law in an important subset of cases (pp. 95-235). Second, and more controversially, he argues that domestic law would be improved if U.S. judges routinely "cross-referenced" foreign and international legal materials, even when doing so is not required in order to decide a pending case (pp. 236-46, 254-80).

Part II, attempting a kind of Linnaean taxonomy, posits that multiple forms, or typologies, of globalization exist in U.S. domestic law and must be identified and understood. More specifically, two distinct genera of transnational law appear to exist: (1) legal globalization born of necessity and (2) voluntary legal globalization (i.e., globalization born of judicial will). The first genus is unavoidable and already a fact of everyday judicial decision-making in the federal and state courts. In contrast, the second genus is, quite appropriately, the subject of serious normative objections, practical difficulties, and political controversy.

Part III considers the normative and practical difficulties associated with voluntary judicial efforts to harmonize legal rules across national borders. It posits that harmonization, particularly with respect to constitutional rules, presents very difficult theoretical and practical questions--questions that are much harder than those associated with resolving conflicts of law or applying international law rules (whether derived from treaties or jus cogens"). Some of the most important of these questions are related to the legitimacy of unilateral judicial efforts to harmonize constitutional rights and the process of constitutional adjudication across independent, domestic legal systems. Part III also examines the potential costs and benefits of transnational judicial dialogue and so-called judicial diplomacy, (12) which can involve both formal and informal interaction between courts and jurists.

Finally, the Review concludes by offering a brief summary and arguing that the case for legal globalization is considerably stronger in some contexts than in others. Accordingly, judges, lawyers, and legal scholars should work to create and implement a legal taxonomy that disentangles cases that require judges to take account of foreign and international law from those that do not. In the end, Justice Breyer's claim that U.S. domestic courts must interact with foreign and international law more frequently today than ever before is indisputably true (pp. 3-6, 91-93, 281-82). But this fact does not answer the more difficult question of whether judges serving on domestic constitutional courts should feel obliged to attempt to harmonize fundamental human rights rules with those of other nations.

In sum, social, political, and economic globalization have forced courts to grapple with how and when to apply local rather than foreign law. Nevertheless, globalization born of necessity is qualitatively different from voluntary judicial efforts to create a new system of global human rights law. (13) Justice Breyer's arguments in favor of transnational borrowing born of necessity stand on considerably firmer jurisprudential ground than his broader arguments in favor of "cross-referencing" legal rules across national boundaries. (14)

1. LEGAL GLOBALIZATION AS A FAIT ACCOMPLI: JUSTICE BREYER'S CASE IN CHIEF FOR LEGAL INTEGRATION ACROSS NATIONAL BORDERS

   The resolution of local legal disputes can have serious global consequences. For example, the outcome of a legal dispute between Apple and the federal government over a warrant requiring Apple to create a protocol that would unlock an iPhone used by a person who planned and executed a terrorist attack in San Bernardino, California, could have produced serious effects both inside and outside the United States. (15) This dispute demonstrates how domestic legal rules cannot be viewed solely in local--rather than global--terms. If the federal government had succeeded in forcing Apple to create a technology that can unlock an iPhone, other nations would inevitably have demanded that Apple make this new technology available to their law enforcement and national security agencies as well. (16)

   To be sure, the ultimate resolution of the question in the United States will not, perforce, have direct transnational legal application. The revision of the legal and technological rules governing the privacy of smartphones will not be the result of intentional harmonization efforts by domestic courts borrowing, or to use Justice Breyer's preferred nomenclature, "cross-referencing" (pp. 236-38), the U.S. approach. Instead, the outcome will be the entirely predictable effect of one sovereign successfully rejecting a privacy claim and forcing a corporation doing business within the jurisdiction to assist with an ongoing criminal investigation--if this is how matters ultimately come to rest. (17) The Court and the World is at its most persuasive in circumstances like the iPhone controversy; the adoption or rejection of a legal rule in one jurisdiction will have readily foreseeable consequences in others. (18)

   Justice Breyer begins his argument by considering the Supreme Court's efforts to enforce constitutional constraints against the president--particularly in the context of foreign and military affairs. (19) He notes that the Supreme Court initially took a very deferential approach in cases challenging presidential authority and generally sustained the president's unilateral assertions of executive authority (pp. 25-41). Over time, however, the justices became increasingly insistent on enforcing constitutional limits on the scope of executive power--even in contexts involving foreign and military affairs (pp. 42-80).

   Pointing to landmark constitutional decisions such as Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure) (20) and Boumediene v. Bush, (21) Justice Breyer posits that "today's Court...