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What Is the Rule of Law, Anyway?

In America, Civics, Economics, History, Humanities, Jurisprudence, Law, Libertarianism, Philosophy, Western Civilization, Western Philosophy on June 7, 2017 at 6:45 am

This piece originally appeared here in The Intercollegiate Review.

“Donald Trump Could Threaten U.S. Rule of Law, Scholars Say.” So declared an ominous headline in the New York Times roughly one year ago. MSNBC likewise ran a suggestive interview in January entitled, “Will the ‘rule of law’ survive under Trump?”

Such alarming commentary presupposes the existence of the rule of law in the United States and appears designed to portray Donald Trump as a threat to that rule. In March, however, Reason republished and retitled a curious piece that first appeared in The Week: “The Immoral ‘Rule of Law’ Behind Trump’s Deportation Regime.” The implication of this revised title (the original read, “How today’s pro-immigrant activists are adopting the tactics of abolitionists”) is that Trump is staunchly committed, rather than antagonistic, to the rule of law.

So which is it? Does Trump jeopardize or safeguard the rule of law?

The answer, if we assume the rule of law is in full force and effect in the United States, is probably situational: In some cases, Trump undermines the rule of law, while in others he reinforces it. But to know for sure, and to appreciate the difference, one must first understand what the rule of law is.

The rule of law encompasses multiple legal principles, chief among them is that the rules that govern society apply equally to all individuals within the prescribed jurisdiction. No person, not even the king or the president, is above the law. Law, not the arbitrary commands or categorical dictates of human rulers, is supreme.

Thus, the opposite of the “rule of law” is the “rule of man,” or the idea that the formal, discretionary imperatives of a powerful sovereign necessarily bind his subjects and subordinates.

The rule of law is a philosophical concept and a liberal ideal that gained ascendency during the Enlightenment (think Locke and Montesquieu) but that can be traced to antiquity (think Aristotle). The British jurist Albert Venn Dicey listed as its prime characteristics:

  1. “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power”;
  2. “equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts”; and
  3. “a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the Courts.”

These suggest that the rule of law is a bottom-up rather than a top-down system of governmental ordering based on already enunciated and widely accepted precepts. The operative rules that regulate the normative order of human activity in a free society under the law are rooted in custom and tradition. A ruler or judge is, in such a happy jurisdiction, responsive to the controlling principles that are antecedent to his or her political election, appointment, or empowerment.

F. A. Hayek identified the rule of law as a defining attribute of the common-law system, which, in his view, stood in contradistinction to the civil-law system that instituted vast codes and complex administrative agencies to superintend the unvigilant populace. Legislatures, of course, are accountable to the people through elections; thus, their enactments must reflect extant social practices and beliefs to satisfy voters. Administrative agencies, with their extensive rulemaking powers, are not so accountable. They are by design removed from legislative procedures and thus isolated from voters.

Hayek saw the common law as a decentralized form of social organization, and civil law as centralized planning and design. The rule of law, he thought, inhered in the former system but not in the latter. “The possession of even the most perfectly drawn-up legal code does not, of course, insure that certainty which the rule of law demands,” he warned, “and it therefore provides no substitute for a deeply rooted tradition,” which the common law embodied.

The rule of law encapsulates other seminal concepts as well: the predictability, consistency, reliability, neutrality, and clarity of working rules, for instance. These, however, are in some way derived from the principal teaching that, in Hayek’s words, “all rules apply equally to all, including those who govern.” By any appreciable standard, the United States has not lived up to this high ideal in light of the growth of sovereign immunity and qualified immunity for government officials, the disparate treatment of individuals based on their political power and connections, and, among others, the rapid rise of the administrative state.

Lately the rule of law has become associated with a law-and-order mentality that emphasizes punishment, severity, and rigidity as touchstones of the legal system. The rule of law, on this view, is the instantiation of brute force or the execution of raw power, or perhaps an ideological construct meant to condition the populace into servile submission to government authority.

This understanding of the rule of law has some merit: John Hasnas’s article “The Myth of the Rule of Law” explains how rule-of-law rhetoric indoctrinates people into casual acceptance of the harmful government monopoly on the institutions of law. He decries the gradual acquiescence of ordinary people to, in his words, “the steady erosion of their fundamental freedoms” in the name of the rule of law.

But the rule of law as an ideal, rather than a felt reality, aims to preserve rather than imperil fundamental freedoms. Perhaps there are those with ulterior motives who champion the rule of law to achieve concealed goals; perhaps government in its current form cannot actualize rule-of-law ideals. When rule-of-law discourse does serve the repressive function that Hasnas describes, it is unduly coercive and abusive. In its proper form, and as it was originally understood, however, the rule of law aspired to restrain government power.

In the minds of yesteryear patriots like Thomas Paine, the United States epitomized the rule of law. He averred that “in America the law is king,” whereas “in absolute governments the king is law.” He said, as well, that “in free countries the law ought to be king; and there ought to be no other.”

If the law is no longer king in America, it’s not because of Trump. That he enjoys immense and immeasurable power is evidence of the extent of the decline of the rule of law in this country.

Having flouted and subverted the rule of law for decades, the radical elements of the progressive left in the United States now face the inevitable consequence of their concerted activity—namely, that their coercive methods and institutions may be turned against them, and the authoritarian structures they created may service policies at odds with their own.

We can all learn a lesson from this revealing irony.

Love and the Law Professors

In Academia, Arts & Letters, Book Reviews, Books, Conservatism, Jurisprudence, Law, Law School, Legal Education & Pedagogy, Legal Research & Writing, Liberalism, Oliver Wendell Holmes Jr., Pedagogy, Scholarship, Teaching, Writing on March 29, 2017 at 6:45 am

This review originally appeared here in The University Bookman. 

As improbable as it sounds, someone has written “a love letter to the teaching of law.” At least that’s what Stephen B. Presser sets out to do in Law Professors, which is less pedagogical than it is historical and biographical in approach. If not a love letter, it’s at minimum a labor of love about the genealogy of American legal education, for which Presser is admirably passionate.

Even more improbable is how a book about three centuries of law professors could be enjoyable. Yet it is. Every rising law student in the United States should read it as a primer; experienced legal educators should consult it to refresh their memory about the history and purpose of their profession.

Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Prizker School of Law and the legal-affairs editor of Chronicles. He’s a leading voice of what is sometime referred to as paleoconservatism, who maintains that our political dysfunction derives in part from the methods and jurisprudence of law professors. His book might be called a diagnosis of our social ailments, the cure being the repurposing of legal education.

Beneath his silhouettes—two involve fictional figures (Lewis Eliot and Charles Kingsfield) while the other twenty deal with actual flesh-and-blood teachers—lies a structural dualism that enables him to classify his subjects under mutually exclusive heads: those who believe in higher law and divine order, and those who believe that laws are merely commands of some human sovereign. The former recognize natural law, whereby rules and norms are antecedent to human promulgation, whereas the latter promote positivism, or the concept of law as socially constructed, i.e., ordered and instituted by human rulers.

These binaries, Presser says, explain the difference between “common lawyers and codifiers,” “advocates of Constitutional original understanding and a living Constitution,” and “economic analysts of law and Critical Legal Studies.” Here the dualism collapses into itself. The common-law method is at odds with originalism in that it is evolutionary, reflecting the changing mores and values of local populations in a bottom-up rather than a top-down process of deciphering governing norms. Constitutionalism, especially the originalism practiced by Justice Scalia, treats the social contract created by a small group of founding framers as fixed and unamendable except on its own terms. The law-and-economics movement as represented by Judge Posner and Judge Easterbrook is difficult to square with natural law because it’s predicated on cost-benefit analysis and utilitarianism. In short, it’s a stretch to group the common law, originalism, and the law-and-economics movements together, just as it’s strange to conflate legislative codification with critical legal studies. Distinctions between these schools and traditions are important, and with regard to certain law professors, the binaries Presser erects are permeable, not rigid or absolute.

Presser’s narrative is one of decline, spanning from the late eighteenth century to the present day. It begins with Sir William Blackstone, “the first of the great modern law professors.” Presser may overstate the degree to which Blackstone propounded a common-law paradigm that was frozen or static and characterized by biblical principles. The influence of Christianity and moral principles is unmistakable in Blackstone’s Commentaries on the Law of England, especially in its introductory and more general sections, but the vast majority of the treatise—which was intended for an audience of young aspiring lawyers, not scholars or jurists—describes basic, mundane elements of the British legal system and organizes judicial principles and decisions topically for ease of reference. Presser is right that, more than anyone else, Blackstone influenced early American lawyers and their conception that the common law conformed to universal, uniform Christian values, but Jefferson’s more secular articulation of natural law as rooted in nature had its own adherents.

Other teachers included here are James Wilson (after whom Hadley Arkes has named a fine institute), Joseph Story (whose commitment to natural law is offset by his federalist and nationalist leanings), Christopher Columbus Langdell (whose “original and continuing impact on American legal education is unparalleled”), Oliver Wendell Holmes Jr. (whose career as a professor was short and undistinguished), John Henry Wigmore (whose “sometimes idol” was Holmes), Roscoe Pound (“a figure of extraordinary talent”), Karl Llewellyn (the “avatar” of the legal-realist movement), Felix Frankfurter (“no longer the God-like figure at Harvard”), Herbert Wechsler (“the anti-Holmes”), Ronald Dworkin (who reformulated the theories of John Rawls), Richard Posner (the subject of William Domnarski’s recent biography), Antonin Scalia (“best known for his bold conservative jurisprudence”), and several still-living contemporaries.

Presser is particularly hard on Holmes, relying on Albert Alschuler’s harsh and often careless assessments of the Magnificent Yankee. He charges Holmes with embracing the view that judges were essentially legislators and suggests that Holmes was “policy-oriented.” Although this portrayal is popular, it is not entirely accurate. In fact, Holmes’s jurisprudence was marked not by crude command theory (the Benthamite version of which he adamantly rejected) but by deference and restraint. Presser himself recalls Alschuler in claiming that Holmes “was prepared to approve of virtually anything any legislature did.”

So was Holmes a policy-oriented judge legislating from the bench, or did he defer to legislatures? Undoubtedly the latter. Only once during his twenty years on the Massachusetts Supreme Judicial Court did he hold legislation to be unconstitutional. As a Supreme Court Justice, he almost programmatically deferred to state law. “[A] state legislature,” he said, “can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States,” adding that courts “should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.” Rather than imposing his personal policy preferences, Holmes believed that a judge’s “first business is to see that the game is played according to the rules whether [he] like[s] them or not.” If Holmes’s conception of judicial restraint and the Fourteenth Amendment had carried the day, the holdings in Roe v. Wade, Planned Parenthood v. Casey, Lawrence v. Texas, and Obergefell v. Hodges, among others, would not have occurred.

Presser admittedly doesn’t like Holmes, but he is polite about it. There’s a charming sense of collegiality in his assessments of his contemporaries as well. He boasts of his own traditionalism without hesitating to call Duncan Kennedy and Catharine MacKinnon “brilliant.” He disagrees with his opponents without denigrating their intelligence and expresses gratitude to faculty whose politics differ radically from his own. He describes a variety of disciplinary schools, including critical race theory, which don’t appeal to him. And he gives some unjustly neglected thinkers (e.g., Mary Ann Glendon) the attention they rightly deserve while some overrated thinkers (e.g., Cass Sunstein) receive the attention they relish.

President Obama is held up as the quintessential modern law professor, the type of haughty pedagogue responsible for the demise of the rule of law and the widespread disregard for constitutional mandates and restrictions. Yet law professors as a class weren’t always bad; in fact, they once, according to Presser, contributed marvelously to the moral, spiritual, and religious life of America. Presser hopes for a return to that era. He wishes to restore a proper understanding of natural law and the common-law tradition. His conclusion takes a tendentious turn that reveals his abiding conservatism. Those who agree with him will finish reading this book on a high note. His political adversaries, however, may question whether they missed some latent political message in earlier chapters.

But isn’t that the nature of love letters—to mean more than they say and say more than they mean? Presser’s love letter to law teaching is enjoyable to read and draws attention to the far-reaching consequences of mundane classroom instruction. He’s a trustworthy voice in these loud and rowdy times.

The American Nietzsche? Fate and Power in Oliver Wendell Holmes Jr.’s Pragmatism

In America, American History, American Literature, Arts & Letters, Creativity, Emerson, Essays, History, Humanities, Jurisprudence, Law, Law-and-Literature, liberal arts, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Rhetoric, Scholarship, Western Philosophy on February 15, 2017 at 6:45 am

Allen Mendenhall

Seth Vannatta of Morgan State University recently coauthored a piece with me on Friedrich Nietzsche’s influence on U.S. Supreme Court Justice Oliver Wendell Holmes Jr.  The piece appeared in the fall 2016 issue of UMKC Law Review.

Richard Posner is one of the few legal minds to have noticed the affinity between the philosophies of Holmes and Nietzsche. Dr. Vannatta and I hope to expand the circles of interest in this topic.

Our article demonstrates how Holmes’s pragmatism both comports with and departs from Nietzsche’s existentialism. Holmes’s pragmatism shares with Nietzsche’s existentialism a commitment to skepticism, perspectivalism, experiential knowledge, and aesthetics, as well as an abiding awareness of the problematic nature of truth and the fallibility of the human mind.

We suggest that Holmes was familiar with Nietzsche’s writings and that the two thinkers turned away from Christian ethics and glorified the life struggle in distinctly evolutionary terms. Both men celebrated the individual capacity to exercise the will for purposes of personal autonomy, greatness, and creative or aesthetic achievement. Nietzsche, however, did not share Holmes’s belief in the pragmatic potential of meliorism, which marks the distinction between their notions of fate.

The thinking of Nietzsche and Holmes converges in the person of Ralph Waldo Emerson, who was a manifest influence on both Holmes and Nietzsche and whose thinking on fate and power, inflected as it is by aesthetic pragmatism, shapes our understanding not only of Holmes and Nietzsche in isolation but also of Holmes and Nietzsche as paired, ambitious philosophers concerned about the role of fate and power in human activity.

The article is available for download here in the SSRN database for those who are interested in reading more about this curious relationship between two intellectuals whose ideas shaped society during the 20th century.

Our Real Constitution—And What Happened to It

In American History, Arts & Letters, Book Reviews, Books, Conservatism, History, Humanities, Jurisprudence, Law, liberal arts, Philosophy, Politics, Scholarship, Western Philosophy on January 25, 2017 at 6:45 am

Allen Mendenhall

This review originally appeared here in The University Bookman.

Conservatism lost a giant when George W. Carey passed away in 2013. Thanks to Bruce Frohnen, his longtime friend, we’re able to hear anew Carey’s prudent admonitions in these strange and interesting times.

Before his death, Carey completed drafts of chapters on progressivism and progressive constitutional reform that later became substantial portions of two chapters in Constitutional Morality and the Rise of Quasi-Law, the book that Frohnen has now completed. The final product is an impressively collaborative effort that substantiates the idea of constitutional morality, which Carey spent years developing.

The two men had planned to split the chapters in half. Having few disagreements between them, they reserved the right to approve and edit each other’s contributions. Carey’s untimely passing changed these plans. To honor his friend, Frohnen consulted Carey’s work carefully, downplaying his own more “antifederalist” positions to accommodate Carey’s more federalist leanings. If Jefferson and Hamilton would have agreed that the size and scope of the American government has become dangerous and unmanageable, then it’s no surprise that Frohnen and Carey found common ground.

Constitutional morality denotes “the felt duty of government officials … to abide by the restrictions and imperatives imposed on them by a constitution.” It contemplates the “unwritten constitution,” a concept central to Frohnen and Carey’s argument that’s drawn from Russell Kirk and Orestes Brownson, both of whom Frohnen in particular has interpreted thoughtfully and skilfully. Kirk defined the unwritten constitution as “the body of institutions, customs, manners, conventions, and voluntary associations which may not even be mentioned in the formal constitution, but which nevertheless form the fabric of social reality and sustain the formal constitution.” To maintain their authority and gain general acceptance in a community, written constitutions and positive laws must reflect the norms and values of the people they bind. Frohnen and Carey’s narrative is about how quasi-law in the form of executive decree and the administrative state have become divorced from the people they govern.

The narrative runs something like this. Rule by executive command and administrative agencies has resulted in a decline of the rule of law in the United States. Odd, extratextual interpretations of the United States Constitution have dislocated its content from the common understandings of reasonably prudent Americans. The Progressive Era facilitated a shift in our approach to law that was qualitatively different from the teachings of checks-and-balances, decentralization, separation-of-powers, and other such doctrines alive in the minds of our Founders, even those like Hamilton and the young Madison (as against the later Madison) who favored a strong national government. Consequently, we have found ourselves in a crisis of constitutional morality, there being little institutional and systemic accountability to curb the broad powers of bureaucracy, reckless and unelected federal judges, a delegating congress beholden to lobbyists and corporations, and the expansion of executive privilege, prerogative, and patronage.

Political rhetoric of limited government, common among Republican leaders, does not square with the manifest reality of the ever-growing managerial state. Heated discourse alone won’t suffice to roll back federal programs and agencies. “What is required,” say Frohnen and Carey, “is a retrenchment of the federal government into a much smaller but more detailed and legalistic form that allows more actions to be taken by other institutions, be they states, localities, or associations within civil society.” In short, these men call for devolution and subsidiarity. They make the case for localized control based on clear rules that are consistent with common norms and expressed in a shared idiom.

Championing the rule of law involves the recognition that, although morality does or should underpin laws, “we cannot use the tool of law to achieve perfect virtue, or freedom, or any other moral good.” Without denying the importance or reality of natural law, which is antecedent to human promulgation, Frohnen and Carey approach it cautiously, stating that it “is not a rigid code demanding that human law force all human beings into a straightjacket of specific individual conduct.” Seemingly skeptical of grand schemes for the magnificent systematization and organization of natural-law principles, they humbly submit that humans “can only do our best to develop practical lawmaking and interpreting virtues such that the laws we make will be efficacious in spelling out and enforcing duties in such a way as perhaps to encourage people to pursue virtue.” This nomocratic mode of thinking recalls Hume, Burke, Oakeshott, Kirk, and Hayek with its awareness of the limitations of human knowledge and its attention to the historical, institutional, and cultural embeddedness of standards and values.

If there is one take-home point from this book, it’s that government is not the instrument through which to facilitate the good, the true, or the beautiful. We should avoid the “new dispensation” that consists in “a government ruled not by formal structures and procedures but by the pursuit of putatively good policy through broad statements of programmatic goals and the exercise of broad discretionary power.” Disempowering the central government may be the obvious counter to this new dispensation, but we’ve been advocating that for decades. In fact, Frohnen and Carey believe that “there can be no simple return to the original dispensation,” which involved “the Framers’ constitutional morality, emphasizing procedure, caution, and restrained defense of one’s institutional prerogatives.”

With no quick and easy remedy at the ready, Frohnen and Carey encourage something less magnificent and extraordinary: civic participation in local associations and mediating institutions such as “families, unions, clubs, schools, and religious groups,” the kinds of little platoons that struck Alexis de Tocqueville, during his tour of America, as bulwarks against tyranny. “More important than any particular policy,” Frohnen and Carey aver, “is the attitude toward law and policy making that must be recaptured.” Although they suggest that some form of separation or secession may become inevitable, the corrective they envision is rhetorical and discursive. We must, in their view, shape the political discourse through private associations, which, in the aggregate, engender the bottom-up processes of rulemaking that reflect the normative orders of local communities rather than the top-down commands of a faraway, massive, impersonal sovereign.

Richard Posner is a Monster

In Academia, Arts & Letters, Book Reviews, Books, History, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, liberal arts, Oliver Wendell Holmes Jr., Pragmatism, Scholarship, Writing on January 11, 2017 at 6:45 am

Allen Mendenhall

This review originally appeared here in the Los Angeles Review of Books.

William Domnarski is probably right when he writes that Richard Posner, like his hero Oliver Wendell Holmes Jr., “seemed destined for a literary life.” Holmes modeled himself on Emerson; he was the class poet at Harvard and earned his reputation as a thoughtful if controversial man of letters who could write with panache.

Posner, who majored in English at Yale, modeled himself on Holmes. “Holmes,” Posner declared in a missive, “is the greatest jurist, at least of modern times, because the sum of his ideas, metaphors, decisions, dissents, and other contributions exceeds the sum of contributions of any other jurist of modern times.” Posner’s writing similarly stands out for its flair and confidence.

Both men extended their influence beyond their legal opinions and have contributed to philosophy, becoming provocative historical figures in their own right. Posner has correctly invoked Holmes as a pragmatist, even if Holmes avoided the designation and referred to William James’s pragmatism as an “amusing humbug.” A member of the short-lived Cambridge Metaphysical Club that birthed pragmatism in the 1870s — and which also included James and C. S. Peirce — Holmes at least imbibed the pragmatism that was, so to speak, in the Boston air. Posner’s pragmatism, however, is only tangentially related to the thinking of Peirce and James, and so one hesitates to call it pragmatism at all.

In a move that must irritate University of Miami professor, Peirce supporter, and Richard Rorty critic Susan Haack, Posner distinguishes his variety of pragmatism — what he calls “everyday pragmatism” — from philosophical pragmatism. His thesis is most pronounced in his book Law, Pragmatism, and Democracy(2005). The quotidian pragmatism that inheres in the law is, in his view, practical and forward-looking and based on “reasonableness.”

It’s not always clear how this mode of pragmatism intersects with, or diverges from, the so-called traditional or classical pragmatism, though it differs markedly — and refreshingly — from what Haack labeled “vulgar Rortyism,” that Frenchified variety of structuralism that dispensed with truth as a meaningful category of discourse.


One suspects, given his outsized ego, that Posner delights in having placed his stamp on legal pragmatism, thereby forcing perplexed students in philosophy departments to come to terms with his ideas and square them with not only Peirce and James but also John Dewey, George Herbert Mead, and W. V. Quine.

Posner’s self-importance can be charming or off-putting. You might see him as an erudite, spirited dandy playing the part of flamboyant intellectual; or, more cruelly, as a bitter sophist bent on celebrating his own idiosyncratic views and maliciously dismissing his opponents with callous words and harsh indictments. Certainly his gratuitous rhetorical attacks on the late Antonin Scalia warrant this latter take.

And yet the man speaks with a high, soft voice; loves and spoils his cat; and spends most of his time reading and writing. It’s hard to condemn such things.

Posner is on record as having fancied himself as not just equal to, but more intelligent than, Learned Hand and Henry Friendly — two giants of American law — because he considered himself more informed about economics. This is surprising, chiefly because his self-assessment occurred before he became a judge.

As a judge, Domnarski tells us, “he could seek to persuade his new judicial colleagues to follow him, so as to further shape the law as he saw it — in his own image.” He continues to shape everything, it seems, in his own image, including, perhaps, Domnarski’s biography, which he read both in draft form and as a final manuscript.

One wonders how heavily he edited his own biography — how much latitude he enjoyed in fashioning his story. He sat for interviews and emailed with Domnarski, which wouldn’t be unusual or improper had he not been a primary source of his own legend, as he certainly appears to have been. As a young man, Posner exercised his authority as president of Harvard Law Review to include certain content over the objections of his peers. Might he have done this with his biographer?


Posner, an only child, is used to promoting himself, and his acquaintances at different stages of his life often note his arrogance. As early as high school, he would say “the Poze knows,” and called himself “the mighty one,” writing in yearbooks that he “welcomes you as a High Priest of Posner Worship.” You can write this off as playful, but you can’t write off the fact that he cites himself in cases more than any other judge — though not by name, Domnarski points out, as if to acquit him of unseemly motivations.

An editor of a peer-reviewed journal once complained that Posner had cited himself too often in a paper, to which Posner rejoined that self-citation was necessary because he had produced most of the relevant literature on the subject. “The Poze knows,” the footnotes might have read. Another time an exasperated Posner wrote to editors at Cambridge University Press, “Don’t you know who I am?” — the same remark that landed Henry Louis Gates Jr. in hot water under different circumstances.

Although Domnarski connected with over 200 people to piece together this book, Posner’s personal opinion of himself seems to control the narrative and crowd out contrary valuations that critics may have offered. It’s not that Posner’s accomplishments and reputation are unearned. He’s worked hard to become perhaps the best-known and most prolific federal circuit judge in our nation’s history, and his talents and learning are unquestionable and impressive. The person who emerges in these pages is exceptional at what he does, but difficult to like. He graduated first in his class at Harvard Law School but was not popular. He remains good with ideas — just not with people. He’d rather disseminate brilliant theories than keep them to himself, even when they’re in bad taste or poor form. Whether that’s a virtue or vice depends upon one’s priority for manners and decorum.


Posner’s most remarkable and admirable quality, it seems to me, is his ability — even willingness — to accept constructive criticism in stride. He doesn’t take evaluations of his work personally, and he invites opposition to fine-tune and improve his ideas. He instructs his clerks to criticize his draft opinions line by line so that he can perfect his rationale. “[W]e should want” and “insist upon,” he wrote to a colleague, “challenge and criticism; the rougher the better; for one of the great dangers of achieving eminence is that people are afraid to criticize you and then you end up inhabiting a fool’s paradise.”

Posner has referred to himself as a “monster,” a characterization he’s also reserved for Wagner, Tolstoy, Nietzsche, Wittgenstein, Proust, Kafka, and Michelangelo. The term thus seems like an odd form of self-approbation rather than regret or self-loathing. It accords with his grand notion that he is “a Promethean intellectual hero,” not just some federal judge who happens to be well read.

Posner remains “a writer first and a lawyer second.” He’s correct that, as he told one correspondent, “the modern practice of law does not offer a great deal of scope for the poetic imagination.” Law schools have divided faculty into fields and sub-fields, and specialists in different areas of practice are increasingly unable to speak to one another in a common idiom or with shared vocabularies. Posner studied at Yale under Cleanth Brooks, who directed Posner’s research on William Butler Yeats, so he knows a thing or two about the poetic imagination and memorable expression.

But maybe the law is not about poetic imagination. Maybe it requires a prosaic and mechanical mind that can dispassionately and without fanfare adjudge the soundness of legal arguments presented by the parties to a case. If so, Posner may have been better suited for a different profession, one he would have loved and within which he could have more appropriately flaunted his creativity. Being an English professor, though, would’ve been out of the question; he dismisses much of what English literature departments regard as scholarship as “bullshit.” He uses the same word to describe work in the legal professoriate, of which he was once a seminal figure. By age 30, in fact, he had achieved the rank of full professor at the University of Chicago Law School. He cultivated the image of an iconoclastic rabble-rouser willing to subject all human activity to cost-benefit analysis. He popularized the law-and-economics movement and eagerly imparted that economic efficiency supplied the right methodology for describing and delineating common-law judging, which involved practical resolutions to concrete problems. The doctrinaire Posner of this period drifted far from the Communist roots of his mother. More recently, though, he’s alleged that capitalism is a failure and moved decidedly to the left on key issues.

Perhaps because of his haughtiness, the law can seem boring and routine without him. There’s something to be said for the color and liveliness he brings to his office, and for his belief that “the law really is a very limited field for a person of literary bent.” Domnarski’s treatment may seem deferential, but it doesn’t cover up Posner’s naked, sometimes brutal honesty. Posner is willing to say what others aren’t, and able to say it more eloquently.

If, as Domnarski avers, Posner considers the average lawyer to be like Bartleby or Ivan Ilych — fancifully tragic figures — then he must disdain or pity those lawyers who come before him in the courtroom and submit their briefs for his relentless scrutiny. The 1987 Almanac of the Federal Judiciary states that lawyers who argued before Posner found him to be “arrogant, impatient, dogmatic,” and “opinionated,” and that he “dominates arguments” and “cross-examines lawyers as if they were 1-Ls in a Socratic exchange with a professor.” The man is important, no doubt, but never learned how to play nicely.

Ever the Darwinian, Posner has suggested that great books prove their merit over time in the competition of the marketplace; perhaps his reputation will too.

Seth Vannatta on Conservatism and Pragmatism in Law, Politics, and Ethics

In Academia, American History, Arts & Letters, Book Reviews, Books, Conservatism, History, Humanities, Jurisprudence, Law, liberal arts, Philosophy, Politics, Pragmatism, Scholarship, The Academy, Western Philosophy on December 28, 2016 at 6:45 am

Allen 2

At some point all writers come across a book they wish they had written. Several such books line my bookcases; the latest of which is Seth Vannatta’s Conservativism and Pragmatism in Law, Politics, and Ethics.

The two words conservatism and pragmatism circulate widely and with apparent ease, as if their import were immediately clear and uncontroversial. But if you press strangers for concise definitions, you’ll likely find that the signification of these words differs from person to person. Maybe it’s not just that people are unwilling to update their understanding of conservatism and pragmatism—maybe it’s that they cling passionately to their understanding (or misunderstanding), fearing that their operative paradigms and working notions of 20th century history and philosophy will collapse if conservatism and pragmatism differ from some developed expectation or ingrained supposition.

I began to immerse myself in pragmatism in graduate school when I discovered that its central tenets aligned rather cleanly with those of Edmund Burke, David Hume, F. A. Hayek, Michael Oakeshott, and Russell Kirk, men widely considered to be on the right end of the political spectrum even if their ideas diverge in key areas. In fact, I came to believe that pragmatism reconciled these thinkers, that whatever their marked intellectual differences, these men believed certain things that could be synthesized and organized in terms of pragmatism. I reached this conclusion from the same premise adopted by Vannatta: “Conservatism and pragmatism . . . are methods . . . guided by various common norms.” As such, they can lead to different political policies despite the consistently conservative character of their processes and techniques.

Read my review of Vannatta’s book in University of Dayton Law Review by downloading it from SSRN at this link.

Oliver Wendell Holmes Jr., Pragmatism, and the Jurisprudence of Agon

In America, American History, American Literature, Arts & Letters, Books, History, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Research & Writing, liberal arts, Literary Theory & Criticism, Literature, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Rhetoric, Scholarship, The Supreme Court, Western Philosophy, Writing on December 7, 2016 at 6:45 am

Allen 2

My latest book, scheduled for release next week through Bucknell University Press, is about United States Supreme Court Justice Oliver Wendell Holmes Jr.  The book continues my work at the intersection of law and the humanities and should interest scholars of literary theory, American literature, jurisprudence, and pragmatism.

I argue in the book that Holmes helps us see the law through an Emersonian lens by the way in which he wrote his judicial dissents. Holmes’s literary style mimics and enacts two characteristics of Ralph Waldo Emerson’s thought: “superfluity” and the “poetics of transition,” concepts ascribed to Emerson and developed by literary critic Richard Poirier. Using this aesthetic style borrowed from Emerson and carried out by later pragmatists, Holmes not only made it more likely that his dissents would remain alive for future judges or justices (because how they were written was itself memorable, whatever the value of their content), but also shaped our understanding of dissents and, in this, our understanding of law. By opening constitutional precedent to potential change, Holmes’s dissents made room for future thought, moving our understanding of legal concepts in a more pragmatic direction and away from formalistic understandings of law. Included in this new understanding is the idea that the “canon” of judicial cases involves oppositional positions that must be sustained if the law is to serve pragmatic purposes. This process of precedent-making in a common-law system resembles the construction of the literary canon as it is conceived by Harold Bloom and Richard Posner.

The book is available for purchase here:

Click here to purchase

The Trial Scene in Shakespeare’s “Merchant of Venice”

In Arts & Letters, Books, British Literature, Fiction, History, Humanities, Jurisprudence, Justice, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Shakespeare, Theatre, Western Civilization on August 31, 2016 at 6:45 am

Allen 2

The following excerpt is adapted from my essay “A Time for Bonding: Commerce, Love, and Law in The Merchant of Venice,” which may be downloaded at this link.

Act IV, Scene I of William Shakespeare’s Merchant of Venice involves the climactic court scene in which Shylock and Antonio confront one another, in person, before Portia, who will determine Antonio’s fate.

At this point Portia has already revealed to Nerissa, her lady-in-waiting, her plan to “wear my dagger with the braver grace / And speak between the change of man and boy / With a reed voice, and turn two mincing steps / Into a manly stride, and speak of frays / Like a fine bragging youth.” She and Nerissa will cross-dress, in other words, and once “accoutred like young men” will act as though Portia is a doctor of laws, or a law clerk, administering justice and adjudicating disputes in the Duke’s Venetian courtroom.

Bassanio attempts to settle the case on Antonio’s behalf by tendering Shylock double and then triple the amount of the original loan, but Shylock unmercifully insists on exacting a pound of Antonio’s flesh. Portia appears to support Shylock, saying, “[T]here is no power in Venice / Can alter a decree established: ‘Twill be recorded for a precedent, / And many an error by the same example / Will rush into the state: it cannot be.” Although she says that Shylock’s “suit” is “[o]f a strange nature,” she submits that “in such rule that the Venetian law / Cannot impugn you as you do proceed.”

Praising Portia as a “Daniel come to judgment,” Shylock demands that a judgment be entered against Antonio immediately: “When [the bond] is paid according to the tenour. / It doth appear you are a worthy judge; / You know the law, your exposition / Hath been most sound: I charge you by the law, / Whereof you are a well-deserving pillar, / Proceed to judgment: by my soul I swear / There is no power in the tongue of man / To alter me: I stay here on my bond.” Antonio himself conveys a preference for swift judgment: “Make no more offers, use no farther means, / But with all brief and plain conveniency / Let me have judgment and the Jew his will.”

Portia readies the others for the judgment by telling Antonio to “prepare your bosom for [Shylock’s] knife.” That the bond calls for the pound of flesh to be exacted “nearest [Antonio’s] heart” draws attention to the metaphorical implications of the judgment and the plural meaning of the bond: it is not just the contractual relationship but the potential for friendship that is about to be carved apart.

Just before the judgment is to be perfected, Bassanio and Antonio profess their love for one another. Portia then explains to Shylock—turning his literalism against him—that the judgment calls for the removal of a pound of flesh but “no jot of blood.” If any blood should be drawn, then Shylock must forfeit his lands and goods to Venice. There being no way to cut a pound of flesh without drawing blood, Shylock finds himself in a precarious situation. Portia tells him that

The law hath yet another hold on you.

It is enacted in the laws of Venice,

If it be proved against an alien

That by direct or indirect attempts

He seek the life of any citizen,

The party ‘gainst the which he doth contrive

Shall seize one half his goods; the other half

Comes to the privy coffer of the state;

And the offender’s life lies in the mercy

Of the duke only, ‘gainst all other voice.

In which predicament, I say, though stand’st;

For it appears, by manifest proceeding,

That indirectly and directly too

Thou hast contrived against the very life

Of the defendant; and thou hast incurr’d

The danger formerly by me rehearsed.

With these words, Shylock is defeated. The Duke pronounces that, as a consequence of the legal proceeding, Shylock shall render half his wealth to Antonio and half to Venice, but Antonio pleads that he will forego his share if Shylock converts to Christianity. The Duke concedes; Shylock acquiesces. The litigation comes to a close.


How Unelected Bureaucrats Became ‘Liberty’s Nemesis’

In America, Book Reviews, Books, Jurisprudence, Law on August 17, 2016 at 6:45 am

Allen 2

This post originally appeared here in The Federalist.

Whether they realize it or not, Americans are subject to the soft despotism of administrative law. The common-law system of ordered liberty and evolutionary correction that the United States inherited from England is hardly recognizable in our current legal system. Bureaucratic administrative agencies that are unaccountable to voters now determine many of the rules and regulations that have palpable effects on the everyday lives of ordinary citizens.

In many important respects, we no longer live in a constitutional republic—we’re subject to the rule of an unaccountable administrative state. This the problem confronted in Liberty’s Nemesis: The Unchecked Expansion of the State, edited by Dean Reuter and John Yoo.

Although the U.S. Constitution does not expressly endow them with legislative prerogative, or even contemplate their current form and function, administrative agencies issue and enforce binding rules. They arrogate to themselves powers nowhere authorized by the Constitution or validated by historical Anglo-American experience. These agencies, moreover, govern quotidian activities once left to local communities and small businesses—everything from managing hospital beds to issuing permits to liquefied petroleum gas dealers. On both the state and federal level, administrative agencies have intruded upon local customs and practices and have imposed burdensome regulations on resistant groups, trades, neighborhoods, and civic associations.

Administrative agencies are creatures of legislation but directed by the executive branch, which has no constitutional authority to pass laws. Their powers derive from statutes that delegate the quasi-legislative authority to issue binding commands in specified contexts. Administrative agencies generally operate independently from Congress and the courts and possess discretionary rulemaking authority.

They conduct hearings and investigations and adjudicate disputes between parties. Some agencies are household names, such as the Federal Trade Commission and the Environmental Protection Agency; some are less known, especially within state government. For instance, state personnel boards manage employment disputes involving state employers and employees, and smaller agencies regulate all sorts of activity—from cosmetology and barbering to translation services and historical preservation efforts.

The justifying theory underlying the creation and existence of administrative agencies is that they consist of qualified experts in a specialized field. Whereas the legislature is made up of elected generalists who come and go, an agency is peopled by nonpartisan specialists with unique training and experience who hold permanent positions. Administrative agencies should thus be more reliable and efficient than legislative or executive bodies in promulgating or enforcing rules and regulations. Moreover, they should be isolated from political processes and partisan pressure. Yet this institutional independence that is touted as a virtue has in practice resulted in widespread unaccountability.

It’s axiomatic that an agency may not be sued without the consent of the state. Such consent, when given, is typically limited in scope so that any potential substantive liability is narrowed. Administrative proceedings only approximate the processes and protocols recognized in courts of law. An administrative adjudicatory forum seldom replicates or reflects the procedural and functional characteristics of a courtroom. When an administrative tribunal enters a final order, the non-prevailing party may seek redress through judicial review, but the tribunal’s decision carries a presumption of correctness on appeal—both on findings of fact and matters of law—except in rare circumstances when a statute prescribes otherwise.

F. A. Hayek warned about administrative agencies—and what he dubbed the “public administration movement”—in The Constitution of Liberty.

He explained that the public administration movement had adopted slogans about government efficiency “to enlist the support of the business community for basically socialist ends.” “The members of this movement,” he cautioned, “directed their heaviest attack against the traditional safeguards of individual liberty, such as the rule of law, constitutional restraints, judicial review, and the conception of a ‘fundamental law.’” Hayek then traced the history of public administration to show that “the progressives have become the main advocates of the extension of the discretionary powers of the administrative agency.”

Philip Hamburger’s Is Administrative Law Unlawful? (2014) echoed Hayek’s criticism that, in Hayek’s words, “the widespread use of [administrative] delegation in modern times is not that the power of making general rules is delegated but that administrative authorities are, in effect, given power to wield coercion without rule, as no general rules can be formulated which will unambiguously guide the exercise of such power.”

Hamburger reframed Hayek’s criticisms in deontological terms by suggesting that administrative law is not, in fact, law—it is inherently lawless. Hayek and Hamburger both make the compelling case that administrative agencies routinely undermine the rule of law, or the principle that the general rules of society apply equally to all citizens as well as the sovereign.

In addition to Hamburger, several recent books have charted the slow growth of administrative law in the United States. Chief among them are Jerry L. Mashaw’s Creating the Administrative Constitution: The Lost One Hundred Years of Administrative Law (2012), Joanna L. Grisinger’s The Unwieldy American State: Administrative Politics Since the New Deal (2012), and Daniel R. Ernst’s Tocqueville’s Nightmare: The Administrative State Emerges in America (2014). These studies are indispensable and together form a comprehensive history of how ordinary citizens succumbed to the supervisory powers of administrative regulators.

Liberty’s Nemesis follows in the wake of these rigorous works, though it is perhaps more polemical. The book includes essays by highly visible and influential figures who range from legal practitioners to politicians, academics to activists, jurists to jurisprudents. The book’s primary focus is on administrative agencies, but certain essays—such as former congressman Bob Barr’s discussion of threats to the Second Amendment or John Eastman’s concerns about same, sex marriage—widen the topical scope.

Reuter and Yoo have collaborated before. In 2011 they published Confronting Terror: 9/11 and the Future of American National Security, an edition that featured disparate essays by prominent conservatives and libertarians, some of whom have also contributed to Liberty’s Nemesis.

Reuter, who serves as vice president for the Federalist Society, has supplied the introduction to the book. His contribution is a primer on American civics with an emphasis on the subtle tyranny of administrative law. Yoo, a law professor at the University of California, Berkeley, who’s perhaps best known for authoring legal memoranda regarding torture and the War on Terror during the George W. Bush administration, offers a brief conclusion to the book that calls for conservatives to “recalibrate their revolution” by turning their activist energies against administrative agencies rather than Congress.

In my view, the most intriguing essays in the book belong to Jonathan H. Adler, Gerard V. Bradley and Robert P. George (coauthors), and Patrick Morrisey and Elbert Lin (also coauthors). Some subjects, such as Ronald A. Cass’s appraisal of the so-called Chevron doctrine, under which courts defer to the decisions of administrative agencies, may seem predictable in a text that assails administrative regulation. However, they are no less insightful or important for their predictability.

Other subjects include immigration, financial regulation, and campus speech. An edition with such diverse chapters defies simple summary and ready classification. Doing it justice in this space is impossible. When the authors of such wide-ranging chapters include sitting senators like Orrin Hatch and former commissioners of federal agencies like Harold Furchtgott-Roth, Daniel Gallagher, F. Scott Kieff, Maureen Ohlhausen, Troy Paredes, and Joshua Wright, the reviewer’s task becomes daunting if not impossible.

So permit me a few brief remarks about just three chapters and accept my general endorsement of the book as reason enough to buy it and read it in its entirety. I’ll start with Adler, who details, among other things, the manner in which the Obama administration exceeded the scope of its authority by delaying the implementation of the employer mandate found in the Patient Protection and Affordable Care Act, a.k.a. Obamacare. The first time his administration announced this delay was in a blog post.

Similar announcements followed from the Internal Revenue Service (which was under fire for the politicization of its activities) and the Treasury Department. Obamacare itself was silent as to any executive authority to waive the requirements of the employer mandate, which, as its name suggests, mandated the implementation of its terms. Ignoring that mandate, President Obama and his executive officers enjoy the unique distinction of being the first violators of the law they championed and swore to uphold. In light of the foregoing, Adler concludes that President Obama implemented Obamacare through “unlawful administrative action” carefully calculated to avoid Democratic losses in the 2014 midterm elections.

Bradley and George, for their part, argue the Obama administration has “remapped” religion and society by erasing (or at least by seeking to erase) religious exercise and expression from the public sphere while subjecting private religious exercise and expression to novel and intrusive regulation. Bradley and George argue the Obama administration is erasing religious exercise and expression from the public sphere. For example, the Obama administration promulgated rules that compel religious employers to subsidize not just contraception but abortifacients for their female employees. The exception to this requirement was crafted such that no religious institution could qualify to opt out. The Obama administration promulgated another rule that may effectively eliminate government contracts with religious-based humanitarian organizations that provide care and counseling for crisis pregnancies. Executive Order 13672, which became effective in April of last year, adds sexual orientation and general identity to the non-discrimination categories or classes under Title VII of the Civil Rights Act of 1964. The list could go on—and does go on in Bradley and George’s sustained critique.

Finally, Morrisey, and Lin present a firsthand perspective on the overreach of environmental regulations that have crippled the economy in West Virginia and Appalachia more generally. They target the Environmental Protection Agency, which used Section 112 of the Clean Air Act as a pretext for regulating power plants in West Virginia.

Morrisey is the current Republican attorney general of West Virginia, having defeated the five-term Democratic incumbent Darrell McGraw in 2012. Morrisey’s political rise in West Virginia, which coincided with the Republican takeover of that state’s government, has generated national attention in addition to speculation about his future in higher office.

The fresh-faced Lin, a graduate of Yale Law School, is the Solicitor General of West Virginia, making him the chief appellate lawyer for the state. His experience includes a stint in private practice in Washington DC as well as clerkships with Justice Clarence Thomas, Judge William (“Bill”) Pryor, and Judge Robert E. Keeton. Morrisey and Lin, who actually practice what they preach, give the following warning that sums up the message of the book: “The worst that can be done with respect to an overreaching federal agency is to simply accept it and allow it, through sheer inertia, to remake this country according to the preferences of a handful of unelected bureaucrats.”

Although the composition and character of the U.S. Supreme Court is undoubtedly the most important issue in the 2016 election because of the president’s power to appoint a successor to Justice Scalia—and possibly other justices nearing retirement—voters must also bear in mind the rapid and steady expansion of the administrative managerial state under President Obama. Conservatives now populate state legislatures in vast numbers; state attorneys general collaboratively have begun pushing back against federal agencies; state supreme courts have welcomed traditionalist jurisprudents who revere their state constitutions and the federalist system envisioned by the American Founders.

It will take a new kind of president to roll back the administrative state altogether. State resistance alone is no longer enough. Without any pressure from the executive branch, Congress will remain content to pass off touchy political decisions to administrative agencies, which, unlike politicians, cannot be voted out of power. Congress, in turn, can blame the agencies for any negative political consequences of those choices.

We may never recover the framework of ordered liberty that the Founding generation celebrated and enjoyed. But for the sake of our future, and to secure the hope of freedom for our sons and daughters, our grandchildren and their children, we must expose and undo the regulatory regime of administrative agencies. It’s our duty to do so.

Those concerned must applaud Reuter and Yoo for their efforts at publicizing the complex problems occasioned by administrative agencies. But there’s still much work left to do. Practical solutions will not come quickly or easily. Yet they’ll be necessary if we’re ever going to reverse course and remain a nation of promise and prosperity.

The Sad Career of Justice Stephen Breyer

In Academia, Arts & Letters, Book Reviews, Books, Essays, Humanities, Jurisprudence, Law, Politics on May 4, 2016 at 6:45 am

Allen 2

This essay originally appeared here in The Imaginative Conservative.

It is an unfortunate truism that the longer one remains in the legal profession, the less educated he becomes. The law, as the saying goes, is a jealous mistress: She does not permit solicitors to invest time in rival passions—e.g., philosophy, history, and literature—let alone cultivate the niceties and nuances of expression that distinguish the lettered from the unlettered. It is tough to read Dickens and Henry James when you have got billable hours to meet, and slogging through appellate cases rewards only a rudimentary, distilled understanding of principles that great minds have reworked for centuries. There is simply not enough time for punctual judges and practicing attorneys to master biblical hermeneutics or study Shakespeare, and developing the whole person—learning to live well and wisely—falls far beyond the scope of legal practice and proficiency.

Justice Stephen Breyer was off to a promising start to an educated life when he studied philosophy at Stanford University and then attended Oxford University as a Marshall Scholar. He graduated from Harvard Law School in 1964 and began his legal career as a clerk to Justice Arthur J. Goldberg of the United States Supreme Court. In 1967 Breyer entered the academy—first Harvard Law School and later Harvard’s Kennedy School of Government—where he focused on administrative law. His scholarship was neither groundbreaking nor exceptional, but it was sufficient to secure him a full professorship and to demonstrate a superior understanding of an unpopular subject. Breyer was, at this time, becoming the welcome exception: a literate lawyer.

Then things went wrong, gradually and by slow degrees. Breyer took the bench on the United States Court of Appeals for the First Circuit in 1980 and, thereafter, became less interesting and bookish and more programmatic and expedient. Perhaps he was overworked or overtired, inundated with cases and bogged down by the mostly mundane tasks of judging. Perhaps, as should be expected, he paid more attention to his docket than to the philosophers who had enriched his thinking during his youth. Perhaps he never wanted the life of a scholar and previously had spilled his ink to game the ranks of the professoriate, an arduous scheming no longer necessary once he had achieved a position with life tenure and nearly unparalleled retirement benefits. Perhaps a want of constructive idleness and leisured meditation hardened his contemplative faculties. Whatever the reason, Breyer’s scholarship fell off, his writing suffered, and the lamp of his imagination went out. He poured his soul into cases.

Breyer did manage to exhibit flashes of his former acumen in Active Liberty (Vintage, 2005), but his latest book, The Court and the World (Knopf, 2015), notwithstanding the cheering pother it’s elicited, is a snoozer and not particularly edifying. The introduction consists of the kind of tedious mapping and framing that only the student editors of law reviews would tolerate. Breyer separates the book into four parts. Part I addresses the protection of civil liberties during our age of terrorism and constant security threats; Part II, statutory interpretation; Part III, the interpretation of treaties and the lawmaking powers of the president and Congress; and Part IV, communication between jurists from different jurisdictions across the planet. Two animating themes underlie each part: the meaning and import of the rule of law in a globalized world and the incorporation of foreign trends and norms into the legal system of the United States. The latter theme involves principles of comity, or the idea that one jurisdiction will give weight, deference, and authority to the acts, orders, or rulings of another jurisdiction. Breyer’s thesis is 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, as reflected in concrete cases on our docket, actually presents. Doing so necessarily requires greater, not less, awareness of what is happening around us.”[1] Standing alone, this declaration seems benign and uncontroversial, hardly worth sustained critique or impassioned defense. Yet something is rotten in the state of Denmark, and arguments that seem nonthreatening are not always as they seem.

This essay will analyze Breyer’s attempts to realize his thesis in The Court and the World and raise questions regarding whether he has, in the way he celebrates the transnational turn in judging, betrayed his own provinciality and proven his own misunderstanding of foreign developments as he puts paternalistic presuppositions on display. Rather than modeling a greater awareness of “what is happening around us”—his stated goal—Breyer demonstrates a profound unawareness of international trends and norms, not to mention a paternalistic view of the role of American courts in relation to the cultures and values of peoples beyond American borders.

I will suggest, as well, that Breyer advocates approaches to judging that, if widely followed and accepted, could fundamentally undermine his notions of comity and international interdependence; thus, his jural prescriptions, such as they are, ought to be approached with extreme caution if not rejected outright, at least until a better case can be made for them.[2] Although Breyer purports that he “does not pretend to offer any ultimate or even provisional solutions”[3] to the challenges presented by globalization, or that he “merely surveys what is for many an unfamiliar and still-changing legal landscape,”[4] he champions certain methods and viewpoints that lead inexorably to predictable and definite outcomes.[5]

My chief criticisms are threefold: (1) Breyer affirms the obvious and, thus, contributes nothing meaningful or constructive to our ongoing conversation about the role of foreign law in domestic courts; (2) he defends a transnational turn in jurisprudence at the expense of the liberal, democratic principles he purports to value; and (3) his lack of historical and philosophical understanding, or his refusal or inability to employ that understanding in the service of rational argument in this book, undermines his reliability and undercuts any lasting merit his arguments for transnational adjudication and jurisprudence might enjoy. These are not my only concerns about Breyer and his latest book, but a commentator nervous about the prestige and grandeur of the High Court must shrink from enumerating every failure of one of its most eminent justices. As I am not motivated by pure animus or set in the way of critique, I do praise Breyer’s work where praise is due, in particular regarding his sensible apprehensions about the scope of presidential power, especially during wartime.

The gravamen of Breyer’s argument is that because of communications technology, ease of travel, and globalization, the influence of foreign law on United States courts is on the rise. That is indisputable and self-evident. No reasonable person doubts that we live in “an ever more interdependent world—a world of instant communications and commerce, and shared problems of (for example) security, the environment, health, and trade, all of which ever more pervasively link individuals without regard to national boundaries.”[6] It does not follow from this obvious given, however, that a knowledge of foreign laws and legal institutions should be accompanied by their binding application in the courts of our nation, or that any hesitance to embrace unprecedented levels of extraterritorial-based experimentation with the domestic legal system constitutes, in Breyer’s words, “stand[ing] on the sidelines” or a “withdraw from the international efforts to resolve the commercial, environmental, and security problems of an increasingly interdependent world.”[7] Such language borders on bad-faith and casts doubt on Breyer’s credibility, integrity, and motivation. After all, Breyer does not attempt to explain or even address the potential arguments of his opponents, who are never named in the text (unless they are his colleagues on the bench), nor does he concede when his opponents’ points are valid. Instead, he militates against straw men and caricatured positions that, in his telling, stand in the way of necessary progress and experimentation. Lest I surrender to the same dishonest tactics here, I turn now to key examples from Breyer’s chapters to substantiate my three presiding criticisms.

It is helpful at the outset to note a structural dichotomy that frames Breyer’s argument. “[T]he important divisions in the world,” Breyer opines, “are not geographical, racial, or religious but between those who believe in a rule of law and those who do not.”[8] With this tidy summation Breyer presses into two sides all the world’s religious varieties and cultural multiplicities, each with their own normative codes and modes of participation in government and politics. The risk of Breyer’s oppositional pairing is plain: inattention to nuanced realities, simplification of complex systems and beliefs, reduction of complicated theories, neglect of rivaling perspectives, and so forth. That is not to say such casual coupling has nothing to recommend it; sometimes easy heuristics and graspable models are helpful. Consider, for instance, Aristotle’s ten predicates or the hypothetical State of Nature popularized by Hobbes and Locke. Yet a justice on the United States Supreme Court who urges American judges “to understand and to appropriately apply international and foreign law”[9] should avoid the type of essentializing that subsumes important, distinguishing characteristics of diverse legal systems under two broad categories, one good and one bad. This simplistic dichotomy does manifest injustice to those cultures and communities—many of them more traditionalist, religious, localist, and conservative than their European and American neighbors—which consider themselves to be governed by the rule of law, however different that version of the rule of law may seem from the standards and structures figured in Breyer’s operative paradigm.

To his credit, Breyer is upfront about his assumption that “the United States will remain a preeminent world power, due to its military and economic strength and the prestige of certain features of American life, including our long experience in creating, maintaining, and developing a fairly stable constitutional system of government.”[10] And he is likely right on that score as a matter of factual probability. He also exhibits an endearing pride when he intones that the American legal system has “allowed a large multiracial, multiethnic, and multireligious population to govern itself democratically while protecting basic human rights and resolving disputes under a rule of law.”[11] Yet inherent in his commendation of the American legal system is the unexamined presumption that the legal norms of other, more traditionalist places and cultures are inferior to those of the United States or else poor foundations for the rule of law in practice. “When, therefore, I use the frequently heard term interdependence,” Breyer avers, “it is with these assumptions”—i.e., those assumptions which affirm the superiority and staying power of the American legal system–“firmly in mind.”[12] These assumptions, however valid they may seem at first blush, signal a telling paradox, if that is the right word. To wit, Breyer admires the tolerance and accommodation made possible by liberalism and democratic constitutionalism, but in prioritizing tolerance and accommodation he would open the American legal system to their opposite. Developing in tandem with the proliferation of transnational norms and institutions is the equally rapid spread of radicalism and reaction,[13] exemplified most notably in Islamic terrorism and Sharia Law but evident to a lesser degree in the pseudo-nationalist movements and organizations percolating across Europe. Breyer’s call for the adoption of foreign laws and legal norms could mean the eventual obliteration of the very flexibility and latitude that enable jurists like him to look abroad for instruction and guidance.

Breyer is right in one vital respect: Interdependence has a “particularly worrisome manifestation”[14] as a result of national-security threats, the judicial response to which has been to increase presidential powers at the expense of constitutional fidelity. Breyer’s thesis for Part One, which addresses national security and presidential power, is laudably direct and succinct:

“This Part will show the Court steadily more willing to intervene and review presidential decisions affecting national security, even to the point of finding a related presidential action unconstitutional. What is notable is that this progression toward assertiveness has occurred even as threats to national security have become more international, indefinite with respect to manner, and uncertain with respect to time. Indeed, threats today are less likely to arise out of a declaration of war by another sovereign power and more likely to be posed by stateless international terrorist networks. They are also more likely to last for many years, perhaps indefinitely. The change in the Court’s approach together with the change in circumstances is, I would argue, no mere coincidence.”[15]

What follows this thesis is less direct and succinct as Breyer undertakes to supply an abbreviated history of the political-question doctrine and its implications for the scope of executive authority.

To prove the relevance and significance of the political-question doctrine to current affairs, Breyer briefly discusses Zivotofsky v. Clinton (2012),[16] a recent case in which the United States Supreme Court (hereinafter sometimes referred to as “the Court”) determined that issues pertaining to passport regulation were not purely political questions outside the province of the judiciary. The principal focus of this section, however, is historical, surveying with sweeping strokes everything from Abraham Lincoln’s suspension of habeas corpus to Woodrow Wilson’s prosecution of dissenters during wartime to Harry Truman’s seizure of steel mills, which were private property. Accordingly, Breyer analyzes United States v. Curtiss-Wright Export Corp. (1936) (which held, inter alia, that the President of the United States is constitutionally vested with plenary executive authority over certain foreign or external affairs; that the powers of external sovereignty enjoyed by the United States federal government do not depend on affirmative grants of the United States Constitution; and that the United States Constitution, and the laws passed pursuant thereto, have no force in foreign territory);[17] Korematsu v. United States (1944) (which held that the executive exclusion orders providing for the detainment of Fred Korematsu, an American citizen of Japanese descent, were constitutional);[18] and Ex parte Quirin (1942) (which upheld as constitutional the jurisdiction of U.S. military tribunals—created by executive order—used to prosecute German saboteurs in the United States).[19] Under these cases, the president enjoys wide discretion and privilege in matters of national security and foreign affairs. If Breyer’s summaries of these cases repay rereadings, it is because they are useful guides to landmark cases—but no more useful than any of the student briefs or encyclopedia entries that can be found online.

To his credit, in my view, Breyer rejects the guiding rationale in Curtiss-Wright, Korematsu, and Quirin and finds wisdom in Youngstown Sheet & Tube Co. v. Sawyer (1952), which held that the president did not possess the inherent power, purportedly in the public interest, to order the Secretary of Commerce, during wartime, to seize the private property of steel companies that were wrangling over labor disputes. Youngstown Sheet, whatever else it stands for, represents a stark departure from the mode of absolute deference to executive power adopted and perpetuated by the Court in earlier eras.[20] Why did the Court reverse course in Youngstown Sheet? According to Breyer, “Judges are inevitably creatures of their times, and the Steel Seizure justices had just seen totalitarian regimes destroy individual liberty in Europe. While they did not necessarily fear the rise of an American dictator, knowledge of what happened to other democratic societies must have been sobering.”[21] This explanation would have us believe that a mere awareness of foreign affairs—not fidelity to the terms of the Constitution—motivated the decision in Youngstown Sheet. Although the events of World War One and World War Two and other twentieth-century geopolitical struggles no doubt loomed large in American memory, Justice Black’s opinion in Youngstown Sheet, as well as the concurrences with that opinion, grounded themselves in the text of the Constitution, not in extraconstitutional historical analysis or commentary on current events.

Breyer acknowledges that presidents will, as a matter of course, seek to exercise vast authority to resolve urgent conflicts, but he believes the Court’s institutional duty is to ensure that executive power is prudently circumscribed. “We should,” he says, “expect presidents to make broad assertions of presidential authority, especially during an emergency, when in the rush of immediate events they face immediate problems requiring immediate solutions. The Court, by contrast, playing a different institutional role, can and must take a longer view, looking back to the Founding, across the nation’s history, and sometimes into the unforeseeable future. No matter how limited an opinion the justices try to write, their holdings will be taken as precedent, perhaps for a very long time.”[22] Looking to history and tradition to demarcate executive power is, of course, good, but Breyer appears to disregard the fact that constitutional interpretation—the way in which provisions of the constitution are read and applied by judges and justices—is embedded in historical networks and processes. A judge or justice may not undertake historical inquiry that is divorced from the text of the Constitution, which must provide the framework and serve as the source for judicial decisions no matter the era and no matter the sociopolitical exigencies. If history were to instruct judges and justices that certain provisions of the Constitution were unwise or improper, judges and justices would nevertheless be bound by those provisions and could not remake or ignore them based on their personal interpretations of historical events. Reworking or revising the text of the Constitution falls to the legislature, which is electorally accountable to the citizens, whose cultures and values, which are likewise historically informed, shape and guide the amendment process recognized in the Constitution.

Breyer suggests that the so-called “Guantanamo Bay Cases”—Rasul v. Bush (2004),[23] Hamdi v. Rumsfeld (2004),[24] Hamdan v. Rumsfeld (2006),[25] and Boumediene v. Bush (2008)[26]—represent a new trend, or “the culmination of an evolution that may continue.”[27] Advocates for some Guantanamo Bay detainees had, during the presidency of George W. Bush, begun filing writs of habeas corpus and other, similar actions in the courts of the United States, challenging the detainees’ imprisonment on foreign soil as well as the government’s position that the detainees were not entitled to, and thus not denied, access to the legal system of the United States. Although these cases reaffirmed the longstanding authority of the executive branch in certain areas, they also pushed back against executive powers, vesting in the detainees the right to challenge their detention in the legal system of the United States. These cases collectively established that individuals detained as enemy combatants were entitled to due process of law, notwithstanding their citizenship or executive prerogative, and they effectively curbed the government abuse occasioned by special military commissions and the suspension of habeas corpus. The Court ensured that the rule of law, however strained, obtained in times of war as in times of peace. The days of Curtiss-Wright and Korematsu were, the Court proved, no longer with us. Breyer attributes this development to a growing awareness of other countries and cultures. “The intrusion of the world’s realities into our national life,” he says to this end, “no longer seemed, as it once had, such an anomalous thing, justifying anomalous results.”[28]

Justice Breyer is correct that the “world’s realities” have forced a rethinking of the judicial role and judicial authority, but, again, he closes his eyes to other realities, namely, those demonstrating how constitutionally limited the judicial role and judicial authority are and must be. He characterizes the allegedly new approach as “engagement,” as if, in this particular context, it were not already the prescribed role of the judicial power under the Constitution. “Rather than sit on the sidelines,” Breyer says, “and declare that cases of this kind pose an unreviewable ‘political question,’ or take jurisdiction but ultimately find for the President or Congress as a matter of course, today’s Court will be more engaged when security efforts clash with other constitutional guarantees. It will listen to the government and consider its arguments, but it will not rubber-stamp every decision.”[29] The problem with this characterization is twofold: first, it suggests that the Court is doing something that the Constitution does not require the Court to do and ignores the possibility that the Court in earlier eras might have been acting unfaithfully to the text of the Constitution as the justices shirked their constitutional duties; and second, it could operate as a basis for validating judicial “engagement”—one might say “activism”—in other areas such as the Fourteenth Amendment, under which the Court has forged a grotesque line of precedent, supposedly emanating from the substantive-due-process and equal-protection clauses, that has less textual basis in the Constitution than the sort of judicial engagement manifest in the Guantanamo Bay Cases.

However appropriate Breyer’s concerns about presidential power may be, they are undercut by his reticence to admit that our own Constitution has equipped us with adequate remedies for the problem. He preaches that, in the future, the Court must achieve a “greater willingness to understand and take account of both the world and of the law beyond our borders,” as well as a “readiness to meet the various challenges of doing so,”[30] as though the Guantanamo Bay Cases had nothing to do with the laws within our borders and everything to do with the laws beyond our borders. Leaving aside the problematic jurisdictional and legal status of Guantanamo Bay, a military prison located within the borders of another nation—one that is not an ally of the United States—the fact of the matter is that the Guantanamo Bay Cases involved disputes over provisions in the United States Constitution and the laws of the United States. The Court did not divine its conclusions from, or predicate its rationale on, some greater understanding of the world and extraterritorial law. Thus, Breyer overstates the importance of interdependence in these cases.[31] Although it is true that “[o]ther courts and legislatures have faced and are facing similar threats to their nations’ peace and safety” and that those institutions “have engaged in similar projects to those before our Court of balancing security and liberty,” nothing those courts or legislatures say or do is binding on the courts in the United States,[32] even if their solutions, which Breyer does not specify, “serve as constructive examples that our Court could put to good use.”[33] Nothing in Part I of Breyer’s book supports this conclusion. Instead, that portion of the book reveals how the laws of the United States have, over time and despite setbacks and mistakes, worked better than foreign laws to check power grabs and mediate conflicts as the Court gradually came to adopt rather than disregard certain principles enshrined in the Constitution. If anything, foreign law in this section of the book—as evidenced by the legal architecture of the 20th century totalitarian regimes that loom in the background of Breyer’s narrative—serves as an illustration of what not to mimic and incorporate into the American system.

I pretermit examination of Part II of The Court and the World because its thesis—that courts in determining the reach of domestic statutes must consider the effects of doing so on foreign laws and practices[34]—is straightforward and unremarkable. Moreover, its lengthy treatment of the Alien Tort Statute and other such legal texts is unlikely to interest those unfamiliar with or uninterested in that subject. This section of the book, in which the focus shifts from constitutional analysis to statutory construction, bears out what Breyer means by comity. Breyer urges the United States Supreme Court, and presumably other, inferior courts, “not simply to avoid conflict but also to harmonize analogous American and foreign law so that the systems, taken together, could work more effectively to achieve common aims.”[35] This is an expansive interpretation of comity in that it encourages judges not only “to ensure that domestic and foreign laws d[o] not impose contradictory duties upon the same individual,”[36] the traditional view of comity, but also that judges “increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web.”[37] To achieve comity, so understood, judges must familiarize themselves with foreign laws and customs and can do so through academic journals, treatises, and articles.[38] This advice gestures towards Breyer’s proposal that American judges consider themselves, and conduct themselves as, diplomats.

This proposal, which takes shape in Part III and IV, is not as brazen as it may initially seem because Breyer turns his eye on the role that treaties and other international agreements have played in the domestic legal system. A feature of international law with felt ramifications on the everyday lives and economies of domestic citizens, treaties force judges to contemplate international relationships. Presidents have, over several decades, exercised treaty powers more frequently and on subject matters increasingly more domestic. They have created new agencies that promulgate and enforce rules and regulations, thus leading to new and bigger bureaucracies. “How has the Court’s approach to the interpretation of international agreements adapted to these changes?” Breyer asks.[39] His answer, in part, is that “[i]t has become more important to find interpretative solutions that are workable, thereby showing that a rule of law itself can work.”[40] “[I]t has,” he adds, “become more important for the courts to understand the details of foreign and international rules, laws, and practices.”[41] Breyer’s substantiates this claim with discussions of child custody, international arbitration, and the delegation of authority from domestic to international bodies created by treaty or other such mechanisms.

A certain smugness inheres in Breyer’s remark that “judges who would hesitate to consider decisions of foreign courts when interpreting the American Constitution do not hesitate to consult such decisions when treaties are in question.”[42] Surely, though, Breyer knows the difference between incorporating foreign legal principles into opinions when those principles have merely persuasive value (and no binding operation) in a case and deciphering the outcome-determinative rules in treaties that are at issue in the case as well as a valid source of law under the Constitution.[43] There is a palpable difference between judges in a death-penalty case considering data about how many countries recognize capital punishment[44] and judges in a child-abduction case interpreting the Hague Convention on the Civil Aspects of International Child Abduction, to which the United States is a party. The latter activity has caused the Court to venture “into uncharted legal territories, reckoning with (and at times applying) foreign laws concerning what once were almost exclusively local matters.”[45] It stands to reason that the Court would consider how judges in other countries, bound by the same child-abduction treaty, would interpret the text of that treaty, but why should the Court therefore consider another country’s capital-punishment laws to which the United States never submitted itself, by treaty or otherwise?

Breyer is on better footing in his discussion of the mandatory arbitration provided for in international treaties, which, as they multiply, will increasingly require interpretation by American judges.[46] For obvious reasons, this method of resolving transnational commercial disputes has become more common than court litigation. “[W]hen borders are crossed,” Breyer explains, “arbitration offers the crucially important advantage of forum neutrality—parties can appear before a neutral decision maker without having to be hauled into the other’s courts. The practice is therefore particularly popular among investors in developing countries, who are often skeptical of the local court systems.”[47] It can be vexing to resolve complex disputes between private parties and nation-states for numerous reasons, chief among them being the lack of a widely accepted forum for judicial review;[48] furthermore, the jurisdictional effects of economic globalization are not yet fully known, a fact Breyer acknowledges.[49] Thus, alternative dispute resolution, including and especially arbitration, seems like an area in which Breyer could have done more clarifying and elucidating. With perhaps his strongest points coming in his chapter on arbitration, it’s a shame he spends so little time on the subject, which is rapidly evolving and becoming ever more important to the economic activities not just of governments and large corporations, but of private individuals and small businesses.

It is the matter of socioeconomic, cultural, and political evolution that betrays Breyer’s provincial paternalism. Of course times are changing. Yet when Breyer announces that “[c]hange is upon us,”[50] he seems blissfully unaware of the nature of the change. He is never recklessly explicit about it, but he appears to imply that the United States ought to follow liberal trends that he apparently sees in other countries.[51] If he is correct that “the Court will increasingly have to consider activities, both nonjudicial and judicial, that take place abroad,”[52] then, depending on what he means by “consider,” we may need to prepare ourselves for, to name one possibility, radical Islamic jurisprudence or the spread of intransigent government and messianic statism. Or if Breyer finds unpalatable the form of Islamic law that ISIS, Boko Haram, al-Qaeda, al-Shabaab, or the al-Nusra Front seek to impose on their subjects, perhaps he would prefer China’s two-child policy; India’s abolition of the jury trial; Singapore’s criminalization of littering, chewing bubble-gum, and possessing pornography; or laws prohibiting homosexual activity—some of which carry the death penalty for their violation—in countries from Afghanistan and Saudi Arabia to Dominica and Malawi. I express no opinion here on the value or merit of any such laws outside the United States of America. I raise these examples only to demonstrate the implications and potential ramifications of Breyer’s arguments, which are intended to promote a different vision.

In Breyer’s paradigm “foreign” and “international” appear to mean nothing more than Western European, since he fails or refuses to consider the legal institutions of any Asian, South American, Middle Eastern (Israel excluded), Russian, or African nations. Nevertheless, Breyer seems unaware of the direction the political winds are blowing in the actual flesh-and-blood Europe. Breyer does not strike me as one who would welcome the construction of the chain-link, razor-wire fence—authorized by Hungarian President Viktor Orban—that stretches more than 100 miles along the border of Hungary. Nor do Breyer’s views seem compatible with those of Marine Le Pen and the French National Front, or Laszlo Toroczkai, the youthful Hungarian mayor of Asotthalom, or Geert Wilders, the Dutch founder of the Party for Freedom. Breyer wants Americans to look to Europe to undermine nationalism, yet nationalism is on the rise in Europe.

The French have banned face-covering attire so that Islamic women may not wear a burqa or a niqab. The Swiss People’s Party has become increasingly popular, the Swiss having begun restricting immigration under a quotas law established by a 2014 referendum. The effectiveness and long-term viability of treaties such as the Schengen Agreement among European nations has been called into question. Secessionist movements have sprung up in Scotland, Catalonia, Flanders, and Venetia, and the United Kingdom will soon hold a referendum to determine whether it will remain a member of the European Union, whose future is in jeopardy, as pointedly demonstrated by Jürgen Habermas’s recent plea for European solidarity.[53] The unintended irony underpinning Breyer’s love affair with Western Europe is that, in urging the gradual adoption and enduring “consideration” of foreign laws by American judges, he has laid the groundwork for measures at odds with his liberal, democratic principles.

A vital sense of the interconnectedness of nations has impressed itself deeply in the imagination of certain elites in the United States. It is liable to the type of paternalism exhibited in The Court and the World. In some circles the mere mention of foreign norms or institutions confers upon opinions a prestige too quickly confounded with profundity and intelligence. Even so, the discriminating reader will find little profound in Breyer’s book. Of Breyer’s two chief shortcomings, that of stating the obvious (globalization has caused foreign law to play new roles in domestic controversies) and that of opening domestic courts to the incorporation of foreign law notwithstanding the relevant terms of domestic law or the restraints on such incorporation established by statute or the Constitution, the latter shortcoming is more damaging. Domestic law has mechanisms for dealing with foreign laws. Those mechanisms resolved most of the cases and controversies Breyer discusses in the book. Thus, Breyer hardly replenishes the field of transnational adjudication with fresh insight or makes a compelling case for the embrace of foreign law.

Even regarding the death penalty, Breyer’s advice to look to foreign law for guidance could backfire. According to Amnesty International, executions worldwide were up 28% in 2014.[54] A quick appraisal of Amnesty International’s country profiles on the death penalty reveals that those countries which have abolished the death penalty are experiencing population decline.[55] The death penalty remains popular and prevalent in emerging countries.

Despite his grand vision of judges as diplomats who divine from foreign principles the right and proper course for social action within their jurisdiction,[56] Breyer gently insists on merely humble objectives, muting the vast implications of his argument with careful qualifications such as this one:

“This book is based upon my experience as a judge. It does not survey the whole of international law or even of foreign law as it affects Americans. Nor does it comprehensively describe the instances in which courts must deal with questions involving that law. It illustrates and explains what I have seen and why I believe there is an ever-growing need for American courts to develop an understanding of, and working relationships with, foreign courts and legal institutions.”[57]

Breyer’s description here of what his book does not do is also an adumbration of what his book cannot do: no single book could survey the whole of international law or foreign law as it affects Americans; no single book could comprehensively describe the interaction of international or foreign law with American courts. Nor could Breyer speak from the perspective of someone not himself. Few people, I suspect, object to gaining a greater understanding of foreign courts and legal institutions. Yet the phrase “working relationship with foreign courts and legal institutions” remains problematic. What does it mean? Breyer’s book provides no shortage of possible answers, but the inquisitive reader will come away dissatisfied at the want of clarity.

Breyer’s arguments, finally, are as nothing without the sonorous prose of a Justice Holmes or Justice Cardozo. Anyone could have written this book, which should have been set apart by the fact that its author is a sitting justice. Breyer tells us nothing any close observer of the Court or the legal system could not have said and likely would have said with superior skill and rhetoric. He teases us with passing mention to interactions that are “typically invisible to the general public,”[58] but those interactions remain equally invisible in the book; there are no details about backroom deliberations, about how or why judges and justices compromise their hermeneutics or jurisprudence in the face of international pressure or as a result of some “global” perspective. We’re not told about our Supreme Court justices’ private discussions, research methodologies, philosophical influences, reading habits, or reliance (or non-reliance, as the case may be) on law clerks, amicus briefs, historical documents, or foreign scholarship.

No working judge or lawyer should read this book because most of its subject matter is already recognizable in everyday legal practice to anyone with a basic awareness of professional trends. Those without a legal background will find nothing here that is not already presented more skillfully and comprehensively in casebooks or textbooks. Breyer’s simplistic method (“look abroad, friend”) would have unintended consequences incompatible with his liberal and democratic sensibilities. The Court and the World is a profound waste of effort because it belies its own thesis. This is destined to become “just another book” written by a judge. One might object that a book so unimportant warrants but a short review. On the contrary, a longer review has the benefit of laying bare the many reasons why buying and reading this book is unnecessary. One wonders whether the young, more philosophical Breyer would have developed a more striking argument for his views on transnationalism, or whether he would have inhabited these views at all.



[1] Stephen Breyer, The Court and the World: American Law and the New Global Realities (New York: Alfred A. Knopf, 2015), 8.

[2] I do not mean this as an insult. Breyer himself encourages others “to find better and specific responses” than he can offer from his limited vantage point as a justice on the United States Supreme Court. Ibid., 6.

[3] Ibid., 281.

[4] Ibid.

[5] Breyer can be impressively subtle with his advocacy. For example, when he asserts that “our federal courts may eventually have to take account of their relationships with foreign institutions just as they now take account of their relationships with state courts and other American federal and state legal institutions,” he appears, in context and in light of his arguments throughout the book, to mean that federal courts ought to take account of their relationships with foreign institutions. Ibid., 7. The vague verbal construction “take account of” begs the question: What does Breyer have in mind? To “take account of” something seems innocuous and not quite the same as “utilizing,” “following,” or “employing.” The argument that courts ought to “pay attention to” foreign law is not remarkable. It becomes clear, however, as Breyer lays out his argument, that “take account of” means something more like the deliberate implementation and incorporation of foreign laws and norms in the American legal system, a far more controversial notion than simply to notice or observe foreign law with objective distance.

[6] Ibid., 4.

[7] Ibid., 235.

[8] Ibid., 284.

[9] Ibid., 7.

[10] Ibid., 4.

[11] Ibid.

[12] Ibid.

[13] I use the term “reaction” or “reactionary” differently from the way in which that term is employed by, say, Paul Elmer More or, more recently, Mel Bradford and John Lukacs. A full explanation of the manner in which I use the term here would exceed the scope of the piece, even if it would yield valuable returns.

[14] Breyer, The Court and the World, 81.

[15] Ibid., 13.

[16] 132 S. Ct. 1421, 566 U.S. ___, 182 L. Ed. 2d 423 (2012).

[17] 299 U.S. 304, 318-19 (1936).

[18] 323 U.S. 214, 221-22 (1944). Of this holding, Breyer states, “So what happened to civil liberties? How could the Court have reached such a decision? The question is a fair one, particularly since the majority included Justices Black, Douglas, Frankfurter, and Reed, all of whom later joined the unanimous Brown v. Board of Education decision, striking down racial segregation as unconstitutional. The most convincing, or perhaps charitable, explanation that I can find is that the majority, while thinking the government wrong in Korematsu itself, feared that saying so would only lead to other such cases in which the government was right, and that the Court would have no way of telling one kind from the other. Someone has to run a war. In this case, it would either be FDR or the Court. Seeing the folly of the latter choice, the Court elected not to question the President’s actions. This is an argument, baldly put, for broad, virtually uncheckable war powers. But as we have seen, it resembles what many presidents may actually have thought in time of war.” Breyer, The Court and The World, 36.

[19] 317 U.S. 1, 63 S. Ct. 1 (1942) (ruling in advance of a full opinion); 317 U.S. 1, 24-29, 63 S. Ct. 2 (1942) (ruling with full opinion).

[20] In Breyer’s words, “the Steel Seizure case, even if read narrowly, represents a major change in the Court’s approach to the President’s emergency powers. Occasionally a prior case … had pointed to court-enforced limits. But in the Steel Seizure case, the Court both held that limits existed and analyzed the matter in detail. Its conclusion: better the indeterminacy of Pharaoh’s dreams than a judicial ratification of presidential emergency power without limits.” Breyer, The Court and The World, 63.

[21]Ibid., 61.

[22] Ibid., 61.

[23] 542 U.S. 466 (2004).

[24] 542 U.S. 507 (2004).

[25] 548 U.S. 557 (2006).

[26] 553 U.S. 723 (2008).

[27] Breyer, The Court and The World, 80.

[28] Ibid., 81.

[29] Ibid., 80.

[30] Ibid., 13.

[31] Breyer concludes Part I by stating: “Interdependence means that, when facing subsequent cases like those discussed so far, the Court will increasingly have to consider activities, both nonjudicial and judicial, that take place abroad. As to the former, the Court will have to understand in some detail foreign circumstances—that is, the evolving nature of threats to our nation’s security, and how the United States and its partners are confronting them—in order to make careful distinctions and draw difficult lines. This need for expanded awareness will require the Court to engage with new sources of information about foreign circumstances, in greater depth than in the past. Indeed, by agreeing to decide, rather than avoiding or rubber-stamping, cases involving national security, the Court has implicitly acknowledged a willingness to engage with the hard facts about our national security risks.” Ibid., 81.

[32] Ibid., 81.

[33] Ibid., 82.

[34] Ibid., 91-92, 96-97.

[35] Ibid., 132.

[36] Ibid., 92.

[37] Ibid., 91.

[38] Ibid., 96-97.

[39] Ibid., 168.

[40] Ibid.

[41] Ibid.

[42] Ibid., 169.

[43] That Breyer devotes considerable space to his concerns about treaty powers in relation to other constitutional provisions, such as the Supremacy Clause, shows he is alive to this distinction; his concerns also suggest that, under the Constitution, with regard to treaties, there remain open questions among reasonable thinkers about the limits and proper application of the separation-of-powers doctrine. See generally Ibid., 228-235. See also Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006); Medellín v. Texas, 552 U.S. 491 (2008); Bond v. United States, 572 U.S. ___ (2014).

[44] See Breyer, The Court and the World, 237-39.

[45] Ibid., 170. See, e.g., Abbott v. Abbott, 130 S. Ct. 1983, 560 U.S. 1 (2010); Lozano v. Alvarez, 133 S. Ct. 2851 (2013).

[46] Breyer, The Court and the World, 195-97.

[47] Ibid., 180-81.

[48] See BG Group PLC v. Republic of Argentina, 572 U.S. ___, 134 S. Ct. 1198 (2014) (discussed in Breyer, The Court in the World, 185, 187-92, 195).

[49] Breyer, The Court and the World, 195.

[50] Ibid., 81.

[51] In his responsibly mixed review of The Court and the World, Akhil Reed Amar states, “Left largely unstated is Breyer’s apparent premise that as American judges become more familiar with non-American legal sources …, these very same American jurists will just naturally begin to think globally and to ponder foreign legal materials even in plain-vanilla cases of American constitutional law that do not directly involve foreign events or foreign persons.” Akhil Reed Amar, “Law and Diplomacy,” Los Angeles Review of Books (November 24, 2015) [available online at (last accessed January 3, 2016).

[52] Breyer, The Court and the World, 81.

[53] Jürgen Habermas, The Lure of Technocracy, trans. Ciaran Cronin (Cambridge, United Kindgom: Polity Press, 2010), 3-28.

[54]Death Penalty,” Amnesty International Website, “What We Do” (last accessed January 3, 2016).

[55]Countries,” Amnesty International Website, “A-Z Countries and Regions” (last accessed January 3, 2016).

[56] Breyer submits the following: “When judges from different countries discuss different substantive approaches to legal problems, compare procedures, and evaluate the efficacy of judicial practices, they are not only exchanging ideas about specific tools of the trade. There is more. The underlying, but often unspoken, theme of any such meeting is the sustained struggle against arbitrariness. If the objective is ambitious, it has been so since the time of Hammurabi. The enterprise is not without setbacks. Often, like Penelope’s weaving, what we create during the day is undone at night. But the effort is worthwhile. Civilization has always depended upon it. It still does. And now, to an ever greater extent, jurists from many different countries engage in that effort together.” Breyer, The Court and the World, 280.

[57] Ibid., 7.

[58] Ibid., 5.

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