This is a consistently interesting book, much more so than one would have expected from the reviews in major papers following its initial release.
The book is about conflict of laws, first between the judicial and political branches of the American government, and then between the laws of the U.S. and the laws in the rest of the world. None of the conflicts arise from simple problems. The law rarely provides a black-and-white line, which is of course why so many cases need to be adjudicated, and why the courts so often have split decisions.
In the U.S., there have often been challenges to exercises of executive power by the President. How does the Court decide if the President has overstepped the limits of the Constitution? In previous eras, the Court was reluctant to decide: the President, after all, is privy to a host of considerations, including secret intelligence, treaties, and sub rosa agreements with other governments about which the Court does not and cannot know. In recent years, however, the Court has jumped into the fray, especially with cases arising out of the capture and trial of international terrorists in general, and the prison in Guantanamo in particular. Cases involving terrorists are especially interesting because most precedent involving the use of extraordinary powers by the executive pertains to specific, time-limited wars. In modern times, the war of terror is constant and threats diffuse. How then should executive power be contained or at least balanced?
Then there are the many cases arising out of the globalization of the economy. As Breyer observes about commerce:
“…national markets are now so interconnected and integrated that the most ordinary commercial transactions can involve a host of different activities and entities across the globe.”
How, for example, are American laws to be applied with respect to companies which have operations, sales, manufacturing, and distribution spread around the globe, and can be owned by holding companies in the U.S. or abroad, or may have labor outsourced in the U.S. or abroad, or may import parts and components from anywhere?
What about the case of shoddy goods made in, say, Belgium for an American company and shipped to the U.S. on a ship manufactured in the Netherlands but owned by the United Kingdom? Or what about securities fraud committed by a holding company overseas that owns an American company? Or a conspiracy that takes place over the internet? If there is a perceived infringement of the law at any stage in the process at any location, who can be found libel and in which country’s courts? And how might the ruling of one country’s courts affect international relations?
Breyer argues that the need for courts to understand technical as well as legal dimensions of the world and how other laws intersect with our own is increasingly critical.
Evaluation: Breyer provides an excellent analysis of the facts and issues at stake for each case he discusses, helping readers to understand just how complex the law can be. He presents both sides of the decisions fairly, whether he was in agreement or not, and makes a very good case for the need for increasing knowledge of world law by jurists.
Hardback published by Alfred A. Knopf, a division of Penguin Random House LLC, 2015
Audio Book Run time: 12 hrs, 38 mins. Available as an unabridged digital download from Penguin Random House Audio (2015)
A Note on the Audio Production:
Breyer reads his book well, but employs a number of pronunciation anomalies. These may just be regionalisms.
Note: For a more extensive review of this book, please see the longer version at our sister site, Legal Legacy.