Stephen Breyer, The Court and the World, American Law and the New Global Realities, New York 2015 (excerpt: Part IV: The Judge as Diplomat, pp. 247-270)
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Background
Courts have always drawn upon the case law of other courts in their decisions. Since the late 1990s, international dialogue between courts and judges has been a topic in the literature. This dialogue is part and parcel of globalization across many areas of life. In many places in the world, similar changes in circumstances lead to comparable legal questions, and cross-border problems cannot be solved on the basis of national law alone. Human rights, furthermore, are guaranteed worldwide by means of international agreements. There is thus an obvious need for international dialogue in both legislation and the administration of justice. Such dialogue takes place informally and formally between courts and judges of different countries, between national and international courts and among international courts interested in the sharing of ideas and experiences to arrive at better mutual understanding. This has nothing to do with comparative law in court rulings (see Part II G. 2.) and the obligation of national courts, in particular in Europe, to observe the case law of international courts (see Part II I.), or with the observance of national case law by international courts.
The author cited below, a United States Supreme Court justice appointed in 1994, gives a good impression of how face-to-face dialogue between supreme court members occurs in practice and how the courts concerned can benefit from that. While not specifically mentioned, there is such contact with Switzerland as well.
Summary
Supreme Court justices and other American judges are increasingly meeting with foreign judges, lawyers, law professors and law students. This is due to facilitated travel and communication, but also because they face similar issues, perform similar tasks and share the obligation to uphold the rule of law even in difficult times. At such meetings, not only general aspects of the rule of law are discussed but also specialized areas such as intellectual property, electronic surveillance, seizure of foreign assets, terrorism, customs disputes, mediation and court case management. Most Supreme Court judges regularly visit foreign supreme courts and frequently host colleagues from other nations. There is no reset framework for such talks, and there is no arguing or concluding voting – no winners or losers. The benefit lies in the quality of what is contributed and what the participants can take away with them. In answering the question of how such talks influence the development of law, the author points out that knowledge of the fundamentals of foreign legal systems, while helpful for solving cross-border cases, also contributes to a better understanding of one’s own system of law. The author illustrates this by citing various court rulings on limitations on freedom of expression in the US and Europe. While in Europe the admissibility of a limitation is assessed applying the principle of proportionality based on a weighing of interests, in American case law distinction has been made between three categories of expressions of opinion of varying nature, which then dictate that a limitation is to be assessed with varying degrees of rigour (strict scrutiny, intermediate scrutiny and rational-basis scrutiny), provided that the expression falls at all within the scope of protection of this constitutional right. Only in the case of conflicting constitutional rights do American courts law fall back on the principle of proportionality. In contrast to American case law, which denies or in any case conceals the recognition of three categories implying evaluation on differing bases, the relevant principles applied for evaluation are transparently and openly discussed in European decision-making based on the principle of proportionality. This also requires an assessment of the specific circumstances. The author does not believe that the case law practice of utilizing the three categories should be abandoned, advocating the application of the principle of proportionality on a supplemental basis, as it affords a more precise and transparent understanding of the American Constitution. Conversely, Europe could benefit from observing practices of the American Supreme Court. The author cites case law on limitations on economic freedom in cross-border trade. The author demonstrates the benefits of discussing procedural issues, citing talks with the Supreme Court of India, which adopted alternative dispute resolution mechanisms that had proven effective in the US for dealing with case load.