STEVE INSKEEP, host: No amount of security will protect American lawyers from an import that comes along with globalization. Lawyers and judges have to deal with laws from other countries.
NPR’s Ari Shapiro reports that they are not always prepared.
ARI SHAPIRO reporting:
There’s a raging legal debate right now over whether judges should look to other countries for help interpreting the U.S. Constitution. That’s not what this trend is about. This trend comes from a changing world that’s dragging America’s legal system along with it.
Lea Brilmayer teaches international law at Yale.
Dr. LEA BRILMAYER (Professor, International Law, Yale Law School): You can see it when you go into your local Wal-Mart. Where are all the products manufactured that are for sale there? Large numbers of them aren’t manufactured in the United States.
SHAPIRO: So what if one of those foreign products injures an American who then wants to sue the company? Which country’s laws apply? It’s the kind question that U.S. courts have to answer more than they ever did before. And Ken Reisenfeld, who used to chair the American Bar Association’s International Law Section, says many judges just don’t know what to do.
Mr. KEN REISENFELD (Former Chair, American Bar Association International Law): They feel that they need more information; they need more education on the role of international and foreign laws on U.S. jurisprudence.
SHAPIRO: The problem reaches to the highest levels of the U.S. judiciary. Supreme Court Justice Stephen Breyer spoke about it at the American Bar Association’s last annual meeting. He listed half a dozen Supreme Court cases in one year that involved international trade, injuries, or transportation.
Justice STEPHEN BREYER (Supreme Court Justice): All of those to decide them correctly require lawyers and judges who have some familiarity or ability to reach out and find out about certain areas of foreign law. We can’t do that in the Supreme Court unless the lawyers know enough about us to point the way. And the lawyers can’t point the way unless the law professors teach the students that this is something they ought to look at.
Ms. VICKY JACKSON (Professor, Georgetown Law School): Georgetown is certainly trying to do so with its new Week One program.
SHAPIRO: Professor Vicky Jackson created a new mandatory program called Week One at Georgetown Law School. First year students spend a week tackling a problem that involves laws from more than one country. In one scenario, the U.S. tries to extradite defendants from Europe to face the death penalty. In another, French winemakers sue an American company for defaming the winemaker online. The students have to sort out the problem.
Professor JACKSON: They are told you are the lawyer for this party, or you are the lawyer for the government of Russia, or you are the lawyer for the United States. You have to come up with a recommendation of how to proceed in light of the law.
SHAPIRO: These hypothetical scenarios sound familiar to David Levy, who encounters similar cases in his real world practice in Texas.
Mr. David LEVY (Attorney, Texas): There’s a case that we’re looking at that’s involving overseas operations of a mining company. And the people that are in that country are alleging emissions of the mines, both in terms of the air and water pollution, has contributed to health problems in that country.
SHAPIRO: The case could be tried in the U.S. where the mining company is based, or in Latin America, which is the site of the mine. The difference can have an enormous impact on the outcome of the case. Attorney Bill Maynard recently handled a lawsuit involving an American helicopter that crashed in Mexico.
Mr. BILL MAYNARD (Attorney): And we were able to convince the court that proper application of choice of law principles would result in the application of the law of Mexico.
SHAPIRO: The helicopter company had to pay millions of dollars less than it would have if U.S. law had been applied.
The American Bar Association is trying to fill the education gap on this issue. One proposal has been to focus on educating the clerks who work with judges in hopes that the younger generation can bring its elders up to speed.
Ari Shapiro, NPR News, Washington.
INSKEEP: This is NPR News.