Readings: Through Our Glass Darkly: From 'Universal' to 'Extraterritorial'?

Apologies for Shameless Self-Promotion, but I wanted to mention an essay of mine that came out a couple of months ago as part of an excellent symposium on the work of Harvard Law School's comparative law scholar, my old and dear friend Mary Ann Glendon. (Duquesne Law Review, Vol. 52, Winter 2014, pp. 115-149, "Through Our Glass Darkly: Does Comparative Law Counsel the Use of Foreign Law in U.S. Constitutional Adjudication?" at SSRN.) The title is clumsy, but its opening phrase refers to a conversation I had with Mary Ann probably twenty years ago--a purely casual remark of hers, and I doubt she'd remember it (and certainly shouldn't be held to what I did with it in the essay). But it always stuck with me; I was visiting that term at HLS, and in this discussion she'd urged me to look beyond public international law to comparative law. Explaining why I should find comparative law important, she said, "We see through our glass darkly, after all." I was puzzled by the "our" in that phrase. Each different society and its legal system, she explained--the very stuff of comparative law--sees through its own glass and

each sees in some way “darkly,” peering through the accreted overlays of its own customs, traditions, bureaucratic and administrative processes, toward a moral and rational reading of that society’s law.  Every society’s “glass” carries with it obscuring layers, both moral and rational, and part of the value of comparative law as a field of study is that it provides tools for seeing and understanding those blinders—the motes in others’ eyes and the beams in one’s own, if all goes well—in order to bring light to the darkness. We don’t have unmediated access to any perfectly moral, perfectly rational, perfectly idealized or abstract legal form—even if, in principle, there were such a thing.  What we do have, however, is the ability to compare ways of doing things in different societies and their legal systems, in order to see through the exercise of perspective, what might be a better (or sometimes worse) way of doing things in our own legal system and society. But then Professor Glendon added (I paraphrase the conversation from memory), “I said ‘ours’ because it matters that it’s ‘ours'.  There’s nothing wrong with preferring your own way of seeing through the glass, just because it’s yours—the product of your society, your history, your attachments and affections and those of your people.  That’s especially true of the founding texts of a political society and law—a society’s constitution.” (pp.115-116)

The topic ostensibly at issue in this essay is "comparative constitutional law" and the controversial practice--seemingly today in decline--of US judicial citation to foreign cases in US constitutional adjudication.  One of the contributions of comparative law as a scholarly discipline, the essay suggests, is to emphasize how formal law (law of the kind one might imagine picking up in one society as a judicial opinion and then dropping by helicopter, as it were, into the open arms of a judge in another place with a quite different legal culture) is embedded in complex human institutions with complex histories, relationships, shared background assumptions about interpretation, authority, and so on. Comparative law as an academic discipline has a certain aspect of anthropology to it. But the essay is also about the rise and fall of the Alien Tort Statute (ATS) as a form of "universal" jurisdiction. It discusses a trend that seems to me to consist of the Court seeking to rein in the cross-border reach of US courts--at least insofar as the legal doctrines are justified, directly or merely by background moral assumption, on the basis of universal jurisdiction.  The Court appears to be constraining them to locate the legal reasoning much more closely within the traditionally accepted bases of extraterritorial jurisdiction (other than universal jurisdiction itself).  I stress this is a hypothesis about where the Supreme Court is going--limited mostly, however, to cases in which the courts have been left largely to develop the law on their own (as in the ATS), and over time seem to have largely embraced universal jurisdiction as a conceptual or moral background undergirding acceptance of jurisdiction by US courts.  Many are cases John Bellinger has discussed here at Lawfare (such as Kiobel (2013), Bauman v. Daimler (2014), Morrison v. National Australia Bank (2010), among others). It's quite true that both Congress and executive agencies over many years have pushed for wider and deeper extraterritorial application of US laws, regulations, and regulatory authority.  As Professor Henry Farrell correctly noted in a comment to me (looking to Kal Raustiala's outstanding book, Does the Constitution Follow the Flag?), US courts have (mostly) accepted and enabled extraterritorial moves by the other two branches of government.  I wouldn't disagree.  I'm interested, instead, in judicial rubrics of extraterritoriality that are essentially in judicial hands alone, such as the ATS. After all, ATS cases are different from extraterritoriality explicitly exercised by the executive and Congress and interpreted by the judiciary (such as the Torture Victim Protection Act).  Though in principle Congress legislated the ATS and could change it, it's just a fact that modern ATS cases put the decisions, remedies, and the evolution of extraterritorial reach into judicial hands. It is peculiarly the judiciary's baby. The discussion in this post is considerably broader than the published article itself, and I'd also certainly acknowledge that many fine scholars have found excellent ways to account for these decisions--even where they criticize them--on purely "internal" legal grounds.  But I find myself sharing Eugene Kontorovich's view that SCOTUS is in retreat from the concept of "universal jurisdiction." In retreat for reasons, I'd say, at least partly "external" to legal doctrine.  The Court is responding (at least in part) to a perceived change in global politics.  In a world of new, rising, jostling, competitive great powers, assertions of international "universality" need to be reined in, at least insofar as they are judicial in origin and not firmly grounded in specific statutory or regulatory mandates. In any case, many of these are more plausibly viewed as extraterritorial expressions of American hegemony--American extrusions, through its judicial system, into the wider world--not universality as international law as such would have it.  (In other writing I've sometimes described this as the difference between "international law" and "law of the hegemon.") In a world of less American hegemony and increasing influence of rising new great powers, it seems to me the Supreme Court is becoming somewhat wary of the judiciary, acting largely on its own, reaching abroad to regulate key parts of the global corporate supply chain.  After all, this is the direction that cases under ATS had been gradually heading, as it became a mechanism for civil suit against multinational corporations and, very often, their labor and environmental practices outside the territorial United States.  The Supreme Court, moreover, might be thought to be still more wary of US courts becoming not just the de facto, post hoc regulator of multinational corporations--but US courts carrying a moral sense that this is America carrying out, through its own law, a universalist moral mission.  The political difficulty today is that America would have to perform this mission of universalism by asserting extraterritorial governance in areas that are increasingly about the global economy and private, multinational, actors--and a global economy, moreover, whose leading sovereign actors are increasingly rising great powers that do not automatically roll over for American hegemony, including with regards to multinational corporations arguably more answerable to them. Whether there's anything to these speculations or not, it's an explicitly "external," political, international relations explanation for Court decisions. These decisions might be much better explained on their own internal legal terms.  It's not as if I have any special window into the Justices' minds, and I share the general concern about explaining decisions outside their own legal terms. External, political explanations of SCOTUS decisions tend to explain, well, 150% of everything. So take this with a grain of salt. At the same time, I find it hard to understand the doctrinal shifts purely on their own terms. International politics have become sufficiently complicated that American judicial rubrics for extraterritoriality needs more explicit warrant from the political branches. Justifications can't rest any longer on an easy running together of American assumptions of universality via international law (in such things as the ATS) and what the rest of the world increasingly sees as American particularism supported (but now less so) by American hegemony.   (This essay is also probably best read, if you're of a mind, in conjunction with another article of mine on the Kiobel decision, published last year in the Cato Supreme Court Review.)  (This post has been substantially revised following helpful Twitter (!) comments from political scientist and GW professor Henry Farrell and Harvard Law School professor Sam Moyn--my thanks.) Abstract:

This (35 pp.) essay appears as a contribution to a law review symposium on the work of Harvard Law School professor Mary Ann Glendon in comparative law. The essay begins by asking what comparative law as a scholarly discipline might suggest about the use of foreign (or unratified or nationally "unaccepted" international law) by US courts in US constitutional adjudication. The trend seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period.Practical politics within the US have a lot to do with this, of course. But other reasons, rooted in global politics, are perhaps now starting to be reflected in the US Supreme Court's jurisprudence regarding a body of otherwise doctrinally quite distinct legal topics - the Alien Tort Statute, jurisdiction by US courts over acts and actors taking place outside US territory, among others, as well as the de facto trend away from foreign citation in constitutional cases. It has been widely noticed that the US Supreme Court has taken steps in these areas mostly to pull back, constrain, and condition the extraterritorial reach of US courts, at least in the absence of clear legislative direction.

The occasional use foreign law by US courts in constitutional adjudication represented the flip side of the reach to universalism that the Court now appears be reining in - it represented judicial cosmopolitanism, the embrace of gradual, slow convergence of global judicial views on certain core "values" questions, a cosmopolitanism evidenced by drawing into the US constitutional "conversation" the views of foreign courts, understood to be a legitimate source of expertise, if not precisely legal authority, through the global fraternity of national high courts.The trend today in the US Supreme Court to pull back in all these areas might be partly explained as reflecting a political perception by the US Supreme Court that the real world has taken a turn quite distinct from what things appeared to be in the heady, post-Cold War 1990s. The ideal of global governance through liberal internationalism - defined as international law and institutions overcoming the anarchy of sovereign states - that characterized the 1990s has given way to a world of new, rising great powers, jostling with one another, jealous of sovereign prerogatives, and nipping at the heels of the global hegemon, the United States, which, in any case, today is often understood as a hegemon in decline. An ATS lawsuit against a Chinese corporation for conduct in Africa unrelated to US territory or US nationals seems like a different political proposition today than it might have in 1995.

Moves by the US Supreme Court to constrain Alien Tort Statute jurisprudence, shift away from broad claims of universal jurisdiction and toward insistence on other, traditional bases of cross border jurisdiction, and seemingly to give up - without, of course, saying so directly - contentious citation of foreign courts in constitutional adjudication of core values issues might best be explained by the Court's perception of a long-run shift in global politics. A shift, that is, away from global governance through liberal internationalism; away from American hegemony making claims of universalism; and toward competitive, newly-rising sovereign powers in a world that looks more, rather than less, Westphalian.

Despite important "internal" doctrinal differences between positions taken by members of today's US Supreme Court, an "external" political explanation perhaps accounts in important ways for the seemingly shared agreement among the Justices that the US jurisprudence ought to shift away from assertions, assumptions, and perceptions of the "universal" to more modest assertions of the merely "extraterritorial."