JOHN F. MANNING:
Hello, everybody. Welcome to the 2020
Scalia Lecture, "Who Needs Foreign Law" by Mary
Ann Glendon, who is the Learned Hand Professor of Law. I'd like to take a moment to
extend a warm welcome to Mary Ann's family who are here
today, her daughters Sarah Hood and Katie Lev. So thank you very
much for being here. I'm going to say not many words,
some words, about the lecture, about its namesake, and
about the person who is here to deliver it today. OK. So let's start with the lecture. The Justice Antonin
Scalia lecture series was established at
Harvard Law School in 2013 by an anonymous donor
to promote and advance understanding of the
founding principles and core doctrines of the United
States Constitution. Speakers are drawn from the
fields of political science, history, philosophy, law,
government, religion, and related disciplines. The person chosen to
be the Scalia lecturer is a scholar or figure
of high distinction who, through their work,
research, writings, and teachings,
elucidates the principles of the American founding. Now, it is personally
very meaningful for me to be able to be here to
introduce the Scalia lecturer. Justice Scalia was, of course,
a very influential justice who changed the way lawyers
and judges think about statutes and the Constitution. He was also a friend
of Harvard Law School. When he passed away, my
predecessor, Martha Minow, recalled Justice
Scalia's, quote, "terrific sense of
humor," and his, quote, "great personal warmth." She recalled that he returned
here to his alma mater often, quote, "to meet
with our students, to judge our moot
court competitions, and, as he so loved to do,
joust with law professors and students alike. I know that he loved
all of these visits and always provoked lots
of lively discussion while he was here." Let me add that as one of
Justice Scalia's law clerks, I got to know him well. He loved the law school. He loved the law. He loved ideas. And perhaps, above all,
he loved to mix it up. That's how he learned. And he would've been-- he would've loved
to be here today, I'm sure, to listen
to his friend whom he admired very much,
Professor Glendon, partly at least, disagree
with his position on the use of foreign law and
constitutional adjudication. OK, now on to our speaker. Professor Glendon joined
the Harvard Law School faculty in 18-- in 19-- [LAUGHTER] --in 1987. She is a distinguished
and internationally known scholar and teacher,
particularly in the area of comparative law. She writes and
teaches in the fields of human rights, constitutional
law, and political theory. She is a member of
the American Academy of Arts and Sciences,
the International Academy of Comparative Law. She is a past president of
the International Association of Legal Science and,
of course, a former US ambassador to the Holy See. Professor Glendon is the author
of many pieces of scholarship, including the critically
acclaimed book, A World Made New, Eleanor Roosevelt
and the Universal Declaration of Human Rights. In 2006, she was awarded the
National Humanities Medal. Throughout her career,
Professor Glendon has been a scholar not
only of great importance but of great principle,
someone who listens carefully and generously to every
side of an argument. She is also incredibly
collegial, thoughtful, and kind. I am very grateful
to be her colleague, and we are delighted
to hear from her today. And so without further
delay, it is my pleasure to introduce our speaker, the
2020 Scalia lecturer, Professor Mary Ann Glendon. [APPLAUSE] MARY ANN GLENDON: Thank
you, Dean Manning, for that very kind introduction. And sometimes it does feel
like I started in 1880. [LAUGHS] I'm also grateful to
you in the Scalia committee for asking me to participate
in this wonderful series, which you, yourself, inaugurated. And you were followed by
many distinguished speakers, including our former
colleague Justice Kagan. So it's a great
honor to be here. I must say, I did not know
Justice Scalia as well as many of you here and
certainly not well enough to call him Nino
as some of you do. But I did feel a
great kinship with him because of our common interest
in foreign and comparative law. Now, some of you may be
thinking, excuse me-- Scalia and foreign law? Is this the same Antonin Scalia
who dissented so vigorously over mere references to foreign
law in certain Supreme Court cases, the same
Antonin Scalia who debated so vigorously with
our former colleague Justice Breyer shortly before one
of those cases was decided? Would it be the
same Antonin Scalia who was called by
commentators at the time a nativist, a no-nothing,
and a rampant xenophobe, just to give you some of the
more choice epithets that were thrown in his direction? Well, yes, in fact, it
was that Antonin Scalia. And it was the
same Antonin Scalia who taught comparative law
and private international law for 12 years at the
University of Chicago and the University of Virginia. It was Antonin Scalia who,
shortly after his debate with Justice Breyer, told
an audience at the American Enterprise Institute that-- Dean Manning, pay
attention to this-- that comparative law should
be a mandatory subject in every American law school. So it was in homage to Professor
Scalia and Justice Scalia that I chose the
title for my talk today, "Who Needs Foreign Law?" And not to keep
you in suspense, I think the answer that Justice
Scalia would have given is that practically every
branch of the legal profession could benefit from
consulting the experiences of other countries, except
judges in constitutional cases. And even there, he
had one exception. He was perfectly happy to
consult pre-1787 English law in determining the meaning of
the United States Constitution. Now, if that
surprises you, let me say a few words about the
Professor Scalia, the young man who took his first teaching
job in 1967 at the University of Virginia Law School. At that moment, all
indications were that he was headed
for a great career in international legal studies. After he graduated
from high school where he had a love
of foreign languages, he spent a year in
Fribourg, Switzerland. He went to Georgetown,
Harvard Law School. After Harvard Law School,
instead of rushing off to a clerkship or a firm, as
many of his contemporaries, probably most of his
contemporaries did, he took a whole year traveling
around Europe on, I think, a traveling fellowship
from the law school. He spent most of
that year in Germany where he studied German
law at Frankfurt. So he came back to
the United States, practiced law for a
few years, then went to the University of Virginia. And he was asked by
the student newspaper, what are your specialties. He said, comparative law and
private international law. That's where I'm going
to do my research. His course materials,
which we now have-- thanks to
the Scalia family, we have his course materials
and his other papers in our library here. And last month, I
finally had a chance to look at his course materials. And not surprisingly, he used
the two leading case books that were available then,
our late colleague, Arthur von Mehren's
and Rudy Schlesinger's. In short, whatever
else we can say about Justice Scalia
and foreign law, he had a well-informed
appreciation for it, but 15 years ago many people
got a different impression as a result,
largely as a result, of the debate with
Justice Breyer and of his dissents and a couple
of capital punishment cases at the time. In my remarks today-- when I go to a
talk, I always like to have people tell
me where they're going so that I can
see when they're getting close to the end. So in my remarks today,
I would like to begin by revisiting that debate. And then I would like to offer
some thoughts about three areas where I'm sure Justice Scalia
would have agreed we could use more attention to foreign
law, foreign experiences, in this increasingly
interdependent and globalized world. So the Scalia-Breyer debate-- some of you will recall that
that debate was sparked by, really, I mean, looking back,
just a handful of allusions to the laws and practices
of other countries. Scalia's emphatic disapproval
of those references and, one has to add, his rather
colorful way of expressing them led many commentators to
assume that his attitude toward foreign law was
something like that once expressed by Mark Twain. Mark Twain got
tired of listening to the preachers of his day
always condemning the devil. And he said, that's not fair. They don't give him a chance to
present his side of the case. He can't confront the
witnesses against him. That is irregular. That is un-American. It's un-English. It is French. [LAUGHTER] The fact is, though,
that when you look back at what Scalia actually
said in that debate, it's striking how much
common ground they had. And that should not
be surprising to us because we all
remember Steve Breyer, too, was a person who had
a good deal of interest in what foreign countries did. So the disagreement
really came down to a single point about the
use of contemporary foreign materials in constitutional
interpretation, but they agreed that foreign
materials could provide useful information about how
various legal measures work out in practice, what
Advantages they may offer, what unintended effects
they might have. Scalia once put it-- I'm quoting here-- "you can look
to foreign law and say, gee, they did this in Germany
and the sky didn't fall. That's certainly a very
valid use of foreign law." So when it comes to
the use of foreign law in constitutional
interpretation, he said in the debate,
he said, that's where I get off the boat. He said, to Breyer-- Breyer had taken the
position that the court-- I'm going to quote Breyer
here so you can see how narrow their disagreement really was. Breyer said, "The
court may consider as relevant and informative
the way in which foreign courts have applied standards
roughly comparable to our own in roughly comparable
circumstances." And there was the
rub, "comparable," as the comparatists here
are nodding their head. Yes, Breyer, of course,
was careful to say "roughly comparable." But what Scalia zeroed
in on was in what sense are the constitutional standards
of other liberal democracies, let alone other
countries-- in what sense are they roughly comparable to
ours and in what circumstances? What circumstances can be
said to be roughly comparable? Scalia's position
was that the context of constitutional decisions
in other countries, just the liberal democracies, were
so different from our own that the comparability
problems were severe and underappreciated
by his colleagues. And that position, by the
way, finds strong support in a book that is coming
out in just a month or two, a magisterial 15-nation
study, by Calabresi and Owen, of the constitutional courts
in constitutional democracies. It's a two-volume study, and
it provides abundant support for Scalia's concern
about comparability. So Breyer, of course, conceded
that comparability could be a problem, but
he said, quote, "If I have a difficult case and
a human being called a judge, though of a different
country, has had to consider a
similar problem, why shouldn't I read
what that judge has said? It won't bind me, and
I may learn something. There's enormous value
in any discipline of trying to learn from the
similar experiences of others." Well, what professor
could disagree with that? And Scalia did not disagree. Scalia's complaint
was not about learning from foreign experience
but about giving it something close to a
controlling role in the court's decision-making process,
which, as we now know, was how he saw the
majority opinion in Roper versus Simmons, a case
that was decided just six weeks after their debate. And I know that case
was in their mind when they were debating, and
the division on the court was in their mind. So there was a debate between
two sitting justices followed closely by a split decision,
and it gave rise to a flurry, you might almost say an
avalanche, of commentary, most of it critical to Scalia. But when one reads Roper versus
Simmons at this distance of 15 years, I must say that it
seems to me the commotion was somewhat exaggerated. And Scalia's position in
Roper was often misunderstood. So Roper was a test case on
whether Missouri's application of the death penalty
to older juveniles violated the Eighth Amendment's
ban on cruel and unusual punishments. The death penalty for
offenders under 16 had, several years before,
been held unconstitutional. Mr. Simmons was 17 at the
time his crime was committed. But, in other
respects, if you were looking for somebody
for a test case, he wasn't really
your ideal candidate. He told friends that he
wanted to murder someone, and then he and a
younger associate went into a woman's home, broke
into her home at 2 o'clock in the morning. They tied her hands and
feet with electrical wire. They gagged her, and
they placed duct tape over her eyes and her mouth. And then they took
her to a high bridge and dropped her into a
river where she drowned. Afterwards, he told
his accomplice, don't worry about it
because we'll get away with it because we're minors. And he bragged about the
killing to his friends. And it was those aggravating
factors, actually, that caused a Missouri
jury to depart from the usual presumption
that the age of the defendant should be taken
into consideration as a mitigating factor. So the question that
came to the Supreme Court was whether Missouri, by
applying the death penalty to older juveniles,
was inflicting a cruel and unusual
punishment on them as measured by the
then-test of evolving standards of decency that marked
the progress of a maturing society. Now, in previous
cases, the court had determined what
those standards were, and it measured those
standards by looking at the practices of
the various states and finding a
national consensus. And in previous cases,
a national consensus required, quote,
"overwhelming opposition to a challenged
practice, but generally over a long period of time." And at the time, 15 years
ago, the picture was mixed. There was a narrow
majority of states that had rejected the
juvenile death penalty, but there were 20
states, encompassing 42% of the population, that
had retained it, treating the youth as Missouri did,
the youth of the offender as a factor to be considered
as a mitigating circumstance. Well, Justice Kennedy, writing
for the majority, found that mixed picture
was sufficient to show a national consensus in view
of the evidence of a trend and considering that,
even in the states that retained the death
penalty for juveniles, it was infrequently used. And, in my opinion, the case
could have ended right there. And the dissent, if there
was a dissent at all, would have been
about the details of whether there was
a consensus or not. But Justice Kennedy was worried
about the weak consensus, and so he added
some other language. In fact, he announced
a new approach to determining whether
a state's punishment was in line with evolving
standards of decency. He said that, from now on,
the evidence from the states would be merely
a beginning point for the court's own analysis. And that's where
the trouble started. Kennedy said, "It was up
to the justice themselves," quote, "to determine
in the exercise of our own independent
judgment whether the death penalty is a disproportionate
punishment for older juveniles." And then, using their
independent judgment, the court majority ruled
that Missouri's application of the death penalty to Mr.
Roper was unconstitutional. Now, you may be wondering, where
does foreign law come in here? We've got already
two issues that divided the majority
from the dissenters, or potentially divided the
majority from the dissenters, but Kennedy went
on in the opinion, apparently in an effort to
show that the opinion rested on something other than just
to the views of the justices. He turned to data on what
other countries had done. And he said, "The overwhelming
weight of international opinion against the juvenile
death penalty provides respected and
significant confirmation for our own conclusions." Now, when I went to
law school, Martha, and learned about cases
from Karl Llewellyn, I would call that
dicta, [CHUCKLES] but that gave rise to
a lot of commentary and a lot of
division of opinion. But it was not the principal
basis for Scalia's dissent. Scalia dissented
on three grounds. One was the weakness
of the consensus. One was he didn't like the
references to foreign law. But the main
reason, he said, was to the substitution of the
views of five justices for, a, the judgment of the
Missouri legislature and, b, the judgment of a
Missouri jury, that there were aggravating circumstances that
required the death penalty in this particular case. And that-- he said
in his dissent, that was what, in
his view, was the, quote, "real force driving
the majority's decision." And that was the real
basis of his dissent. It was Justice O'Connor
and her dissent-- Justice O'Connor usually a big
fan of consulting foreign law. She thought the majority
had gone too far this time, and it was in her view
that the majority was using international
opinion to make up for the absence of an
American consensus. That was her. So I think it's fair to
say, at this distance, looking back and reading
all of these materials for the first time in 15 years-- I think it's fair to
say that the majority's finding of a national consensus
on the basis of a trend and the lack of
enforcement was plausible. And in my view, the majority
would have done better to end its opinion right there. But since they
didn't, I must say that what strikes
me as problematic about the majority's use
of foreign data in Roper is a point that neither
of the dissents mentioned. It is that most of the countries
listed in the majority opinion as having abolished the
juvenile death penalty did so through the normal
democratic legislative process and not through court decision. So in my view,
there was a lesson to be learned from
foreign law there, but it wasn't the lesson
the majority took. It was the lesson that
Oliver Wendell Holmes Jr. taught innumerable times,
that a judge's own opinion has nothing to do with the
right of a majority within constitutional limits
to embody its opinions in law. And on that point, it's
instructive to compare Roper with another
constitutional decision where the court unanimously
used foreign law in more than a trivial way
to uphold state law, and Justice Scalia
didn't dissent. So this was Washington
versus Glucksberg, where the Supreme Court upheld
a state of Washington statute mandating-- or not
mandating, thankfully. It was a ban on assisted
suicide as reasonably related to the protection of
a number of legitimate state interests-- preservation
of human life, upholding the ethics of the
medical profession, protection of vulnerable groups,
avoiding the paths to voluntary and perhaps
involuntary euthanasia. And as evidence of the rational
basis for the legislature's judgment, the court cited
studies on euthanasia in the Netherlands
that indicated that the practice there
was not being confined to competent
terminally ill adults, and that governmental attempts
to regulate the practice had not been fully effective. The court also cited legislation
from many European countries making it a crime
to assist a suicide. Today, Washington does
have that statute, but, at the time, that
was the decision of the unanimous Supreme
Court of the United States. So the question is, was
Scalia being inconsistent in protesting the use
of foreign law in Roper and agreeing with
it in Glucksberg? Well, I would say no if you
appreciate the distinction that was made by Judge Henry Friendly
in the famous law review on the use of
social science data and judicial decision-making. And Friendly pointed out that
it's one thing for a court to use such material in-- as evidence that the
legislature's judgment has a rational basis, but
it's quite another thing to use social science
material in support of the court's own decision,
overturning legislation. So we think here of the
way Justice Harlan used social science material in
Lochner and the famous Brandeis briefs. It's one thing to use
social science material, and I think there's an
analogy to foreign law here because the foreign
law that courts cite is, really, I think I
could say, more often data and nose counting
than it is actual analysis of primary legal materials. So I believe that Judge
Friendly's distinction is helpful in the
foreign law cases, but it doesn't
settle the question of whether the uses of foreign
law in a particular case are appropriate because
with foreign law, as with social science material,
there are other issues. How do we assess the
credibility of the material, of the source or the study that
the judge or the judge's clerk found? It's not like a trial where
you can have an expert witness and the expert witness
can be cross-examined. And that difficulty is
compounded by the one that Justice Scalia
harped on, comparability, arising from the ways in which
the context in other nations differ from our own. Neither the unique
American design for constitutional government
nor our distinctive model of judicial review has
been widely copied, even by other liberal democracies. For example, the constitutions
of most countries are far, far easier to amend
than the US Constitution. And in some countries,
the court decision can be overruled
by a supermajority of the legislature. I can only imagine
how disconcerting it must have been for Justice
Scalia to hear Justice O'Connor say, as she did on one
occasion, and I'll quote here, "our Supreme Court should
be looking more frequently to the decisions of other
constitutional courts, because the American
model of judicial review is spreading around the globe." Well, as the new study by
Calabresi and Owen shows, judicial review is spreading
around the globe but not the distinctive American model. Comparability aside, there are
problems of a practical nature that would arise if
references to foreign law would be routine. In the debate with Breyer,
and as Charles Fried as pointed out-- I think I'll quote
his formulation. He says, "That would introduce
a whole range of materials to the texts,
precedents, and doctrines from which the Herculean task
of constructing judgments and particular cases precedes. Litigators would have no
way of knowing when, where, and how often judicial minds
might wander to faraway lands." And another concern that
was expressed by Scalia is selectivity in the
use of foreign law. He said in the
debate, he was worried that judges might be tempted to
manipulate material like that. And Breyer said, oh, no,
that wouldn't happen. Nobody wants undemocratic
judges submitting their view for that of the legislature. But Scalia then pointed out
this is what-- this kind of-- he gives in to temptation
to be a little too colorful. So he says, well,
the judges that like to learn from
other countries so much, they take a different-- they don't take
the same approach to foreign sources that disagree
with them on such matters as illegally obtained evidence,
regulation of abortion, regulation of speech,
public funding for religious education. So he said that their
reliance on foreign law is sort of like the person
who goes to the cocktail party and looks around and makes
a beeline for his friends. So I think one has to
say, at this juncture, that particular temptation
is not exclusive to judges. It's not exclusive to any point
on the political spectrum. It just seems to be
something people do. But this brings me
back to the suggestion that I made at the
beginning of the talk, which is that it is
divergent conceptions of the judicial role that
explain why some people got so upset 15 years ago at mere
references to foreign law and others said
it's no big deal. The argument between
those who oppose and favor the use of persuasive authority
in foreign law and those who see little or no
harm in the practice is largely about
who should decide the most divisive
questions in our society when there is no guidance in
constitutional text, structure, or precedent. And if one is not troubled
when a court majority strikes down a law on the basis of
its own views, then probably one is not going to be
troubled if the court throws in some foreign material
to shore up its opinion. So although I am as keen as
Justices Breyer and O'Connor on the benefits of learning
from the experiences of other countries, I'm inclined
to think with Justice Scalia that the difficulty
of gaining an accurate understanding of foreign
law, the burden on judges and lawyers in doing so, the
problems of comparability, and the issues of
democratic legitimation generally outweigh the
benefits to be gained. But when all is
said and done, it's something of a tempest
in a teapot in my view. Cases involving judicial use
of foreign law are quite rare. And so now I would
like to turn to an area where the use of foreign law
has received less attention than merits, where
the risks are lower, and where the potential benefits
are much greater, namely in the legislative process. And judging from Professor
Scalia's materials, I'm sure he would
agree with me on this, that the legislative
process is an area where more attention to
foreign experience could be helpful, especially
when lawmakers are struggling with new and emerging
problems or existing problems that our legal system
doesn't handle very well. And in that respect,
Scalia would be in the company,
the very good company, of Justice Cardozo, who, exactly
100 years ago, wrote an article in the Harvard Law Review. You know, it's great to look
at the old Harvard Law Reviews. The short article is
really a wonder to behold. The person who says what
there is to say and stops-- so great. [LAUGHTER] So Justice Cardozo's
article was a suggestion that the US should
adopt the practice of several European
countries to canvas the experience of
other nations when confronted with new or
intractable problems. His point was not
that there are devices overseas that you can bring
over, like a new appliance and put an adapter in and
plug in and it's ready to go. It was rather that awareness
of how other nations deal with new issues
can, at a minimum, give us a better
understanding of the issues and often can do more,
providing insight into how various legal
approaches work out in practice, what
advantages they offer, what risks or
indirect consequences they are likely to entail. And in fact, that
type of inquiry is mandatory for the British
and Scottish Law Commissions. They are required by statute
to obtain such information as to the legal systems of
other countries as it appears to the conditioners likely to
facilitate-- commissioners-- likely to facilitate the
performance of their functions. American legislatures are
still far from routinely expanding their field of
inquiry to that extent, but they have, on occasion,
drawn upon foreign experience with impressive results. The probate reforms that greatly
reduced the expense and delay of probate for small and
middle-sized estates, those reforms were introduced
by German, mostly German, and Austrian émigré scholars
who came to the United States in the 1930s and
wondered, marveled, at the cumbersomeness of probate
for people with modest estates. Another example would be
Workers' Compensation Acts-- almost all based on English
and German statutes. But I wanted to
mention, in particular, one of the most successful
American instances of outright legal borrowing
and one of the least known. In fact, it was
deliberately not advertised. Karl Llewellyn,
as chief reporter of the Uniform Commercial
Code, borrowed freely from German models, both as
to form and as to substance. But for obvious reasons, when
he went around the United States getting every country but-- every state but Louisiana to
adopt the Uniform Commercial Code, he wasn't
going to advertise where the interesting
and quite unusual statute, in terms of the
form, the general part, and the special part, and,
in doubt, do this and that-- he wasn't about to advertise
where those ideas came from. And in that connection,
I might mention that Americans could also
learn from foreign models a little bit about
statutory drafting. Do you ever read a statute and
wonder who writes these things? How is it possible? And, Dean Manning,
I don't know, but I think that there is no
American law school that has a course on statutory drafting. Maybe there was one at
Chicago for a while, but it's something
to think about. So as a practical matter, law
revision bodies, unlike courts, can eliminate some
of the problems with use of foreign law because
they can target the areas where they're going to invest their
time and their research, where they have reason to
believe that they'll get return for their investment. And we see that today. And in fact, many people on
the faculty of the law school here are engaged in really
useful exchange with scholars in other countries on approaches
to these vexing problems that are arising in rapid
technological developments-- biotechnology, surveillance. And it would be crazy if they
didn't do what they are doing and take a look at
what ideas there are. So now I want to move, very
briefly, to another area where some knowledge of
foreign law is often beneficial to American lawyers. And that's, of course,
the increasing proportion of practitioners who have to
operate in an increasingly globalized legal environment. Well, it has changed
in that respect since I, as a young lawyer,
joined the litigation department at Mayer,
Brown, & Platt. And I asked for leave
to do some pro bono work with the Chicago
Bar Association's Defense of Prisoners Committee. And I had the great
good fortune to get picked as the assistant
and second chair to one of the celebrated
Chicago trial lawyers. I was so excited. We were at our first
trial, jury trial, and I watched as the great
man went up and began the voir dire. And he stood behind
the defendant and kind of had a protective
posture with his arms-- back of the chair. And he said, do you
know, Mrs. Smith-- the first juror-- do you know
that the United States is the only country
in the world that wraps a defendant in a
presumption of innocence that remains with him for the
entire duration of the trial? So you know, being young
and rather full of myself, we were at the first
recess, and I said, Jim, you know what you said
in there about the presumption of innocence? Well, actually, every
liberal democracy has a presumption of innocence. Even the others have something
like it on paper usually. And he seemed very
interested in that. At least I thought
so because he said, no shit, I didn't know that. [LAUGHTER] So we go back into
the courtroom, and he takes his position
behind the defendant. And he says to
the next juror, do you know that the
United States is the only country
in the world that wraps this defendant-- so
those were the days when most practitioners didn't
have much reason for getting involved with foreign law. But today, attorneys
with a little knowledge of foreign law-- I mean, a lot of
knowledge of foreign law-- are increasingly in demand. And firms always need local
counsel for foreign business, but you have to
have somebody who can communicate
with local counsel and who can be persuasive
in foreign settings. And that brings me
to something that I want to say to the
students here who are in the process
of selecting courses for next year and
the year after. If there is room
in your schedule, please consider the magnificent
language-learning opportunities that are offered at
Harvard University, just a few steps away. I've taken some
of these courses. They are wonderful. And there maybe is a
little hole in your-- I don't want you to
displace anything important, like comparative
law, but it really-- it's a golden opportunity,
and I would feel remiss if I didn't mention it. In fact, one of my students
spent the January term at an international
institution in Geneva. And when he came back,
he wrote his report, as our students
are required to do. And he said that the
experience made him aware-- made him think about
how useful it would be to know another language. He said, if I want to continue
in international advocacy, Google Translate
just doesn't cut it. So now, having indicated-- I have to take a
little break here because I'm going to talk
about comparative law and legal education. I have to get ready for
this because the dean is right there. [LAUGHTER] So I'm going to
turn very briefly to the place of foreign
law and comparative law and legal education. There really has
been, over the time that I've been in law teaching,
a great burgeoning, most welcome, of international
legal studies. And most law
schools have greatly expanded their offerings in
public international law, international tax law,
international business law. But it has never been
easy to find professors, American professors, who are
willing and able to teach comparative and foreign law. Harvard has been more fortunate
than most in that respect. And it hasn't been easy
to find capable professors from other countries
who are willing to teach in the United States. I remember that the
University of Chicago used to draw very heavily
on German scholars. And there's a story that,
way back in the earlier part of the 20th
century, the president of the University of Chicago
wrote a noted German scholar and said-- it was a
telegram-- and said, we offer you a post at
the University of Chicago at $5,000 a year. Do you accept? And his telegram
came right back. It said, "ja, wo ist Chicago?" [LAUGHTER] So it's a little-- if it were only so easy now. [CHUCKLES] But having
said that, there are good reasons why the study of
foreign and comparative law is more needed than ever
in a multipolar world. At present, there are two
powerful and opposing trends that are transforming
the global landscape. On the one hand, there's
a universalizing principle that has strong appeal
in many quarters. On the other, there's an
impulse toward decentralization that manifests itself in various
movements for regional, local, and national autonomy. One force presses
toward unification and standardization, the other
toward pluralism and diversity. There are constant struggle
over whether some regional, national, or local
arrangements should be modified and over the extent to
which those arrangements and the values they represent
should be protected. In that environment,
comparatists, with their attention
to particularity and their inclination
for mediating between the general
and the particular, comparatists to
have much to offer. As Notre Dame's Paolo
Carozza has pointed out-- I'll quote here--
"comparative law has the paradoxical capacity
to deepen our understanding and appreciation of
the particularities of legal traditions,
while, at the same time, helping us to transcend our
differences by relating them to one another." Carozza argues for an
integrated approach that values the freedom and
integrity of local cultures without reducing particularism
to pure devolution and affirms internationalism
without the temptation for a superstate or other
centralized global authority. There would be much more
to say on that subject. But, again, having
the students who might be here in mind, I'd like
to close with just one more remark about the benefit
of comparative study, because I think if you
asked most people who study foreign and
comparative law, they might mention the
things that I have mentioned. But I think what most
of us would say-- it's a wonderful
source of ideas. And it's so much so
that it gives you a lasting fascination. And I think that there-- a comparatist in another
field, the great historian, the French legal
historian, Fernand Braudel, put it very well. He said, if you
go-- he's in France. He says, if you go to England
and live there for a year, you won't know much
about the English. But when you return, he says,
in the light of your surprise-- when you come home,
you will see everything in a new light and that
which had been hidden to you because it was so familiar. I think he really captures
what comparatists feel, the sense of, you don't really
understand your own system unless you have a sense of
what other systems are like. And in that respect, I just
wanted to close with the way that TS Eliot put that
point in the Four Quartets. "We shall not cease
from exploration. And the end of all
our exploring will be to arrive where we
started and to know the place for the first time." Thank you. [APPLAUSE] Thank you. Now, as Dean Manning said,
if Justice Scalia were here, I know he would have
found many bones to pick. I know that because I was once
at a symposium at Princeton with Justice Scalia and
Ronald Dworkin and Borkin, and I forget the other person. And I thought that my
presentation was pretty much agreeing with him, but, of
course, he found tons of things to argue about. [LAUGHS] So there is now-- there's now a time, a
moment, for questions. And I'm happy to hear from you. Hello, yes. AUDIENCE: Hi, Professor Glendon. Thanks for that
wonderful presentation. I'm curious. What do you think might
be some of the deeper reasons for the
more inward looking or sometimes insularity
among American legislators? And what do you think can be
done to ameliorate, especially among the younger generations? MARY ANN GLENDON:
Well, it really goes back to the
legal world that I entered as a young lawyer. For a long time, you
just didn't have to know. And there were lots of
other claims on your time. They used to say that
studying foreign law-- or it used to be put to us, who took
a couple of years to do it. They used to say,
well, that's a luxury. It's like a taste for fine wine. It's OK to appreciate
it, but you don't want to get into it too deeply. So I think I would really
answer your question this way, that it's not what
accounts for the insularity so much as why it is taking so
long for American legislators to understand the benefits. I mean, thinking of the
areas of rapid development in technology of all sorts,
you really need all the brains that you can get on that. And maybe in that connection,
I could mention a difference between why did
comparative law become such a well-developed
enterprise in Europe. Well, when we want to know
what our neighboring states do, we just consult the law
of our neighboring states. But Europeans, who are
required by trade and commerce to know something
about their neighbors, they really had to learn
about other legal systems. And if you're a
continental European, you had to know about England,
which those old émigrés-- I had the good fortune to
be educated by some of them. Those old émigrés used to say,
looking at the common law is such a mess. How do you ever even
get a handle on it? No sense of statutory
drafting, for example. So I think the mystery, to
come back to your question, is why aren't we
doing more of it, as Justice Cardozo said
we should 100 years ago. Yes. AUDIENCE: So
shouldn't the question of the relevance of foreign
law and international law to the US Constitution
itself be a question of constitutional
interpretation? MARY ANN GLENDON:
Well, there I would agree with your former
boss that, as he said, there's no rough comparability. You can look. He said, look at it-- learn something-- no
problem with that. But if you're using
it to actually give meaning to clauses
of the Constitution, you are at the outer edge
of your own legitimacy. AUDIENCE: That was so beautiful
and generous and funny, also, a talk. My question actually
goes to subnational. We have state supreme courts. Many of the justices
are elected. If they refer to international
sources or foreign sources, is there a legitimacy problem? I'm really focusing then
on is it the election or is it the judicial role
that makes the consultation a problem? MARY ANN GLENDON: I
think, at the state level, the problem is aggravated
by difficulties of access to the material and
limited resources in terms of clerks and research. But basically, I think the
answer that I would give is that it's interesting to-- I mean, Breyer was right. Why can't I read? Why can't I learn? Those of us who find
learning about foreign law exciting, fascinating,
we'd be all for it, but if you use it to interpret
the state constitution, you've got the same
problems that you have with the
federal constitution, that, first of all, there are
the problems of comparability. And then there are the problems
of if you are substituting your judgment as a judge for the
decision of the democratically elected branches, that's-- unless there's-- as
Scalia would say, unless there's
constitutional text, clear constitutional
text, language, precedent, you're skating on
the edge of your own legitimacy. And right now, in
a country that is in such turmoil
about legitimacy, probably wise not
to exacerbate it. Yes. AUDIENCE: Thank you very much. Many of the other
foreign nations have-- thank you-- have
more robust language protections and the ability
to use different languages in government. Should we be thinking more
about that and language rights in the United States to
expand interest in foreign law and in languages? MARY ANN GLENDON: Well, that's
a very interesting question because that very idea
is being discussed at the State Department. And I am hoping that
it's going to result in some new, more
effective, more intensive programs along those lines. Yes. You know, if you-- you can always find, you
can almost always find, someone in any group,
when you're traveling, who speaks English. But if you only interact with
the people who speak English, you are not getting
a full vision. And it's a concern even
with our diplomats. We shouldn't be-- well,
I think I better not say any more about that. [LAUGHS] Charles. AUDIENCE: When you look at
clauses in the Constitution, like due process,
equal protection, but particularly cruel
and unusual punishment, and you think unusual,
well, to quote the Declaration of Independence,
doesn't it befit us to have due respect to the
opinions of mankind? That's what the Declaration
of Independence says. MARY ANN GLENDON: Yes,
although the Declaration of Independence-- that language was
pretty much directed at keeping other nations out
of our business with England. But the Declaration
of Independence does speak in universal terms. The United States
was the first country in the world to be founded
on the idea of a universal-- all men are created
equal and have certain unalienable rights. So I don't have any
problem with consultation. And in the-- well, you know
the due process clause. You know what
Justice Frankfurter said to the Indians
who were drafting a new constitution in 1948? He said, better leave
due process out. It's subject to too
many interpretations. [LAUGHS] In the very open-ended clauses,
due process, equal protection, again, I think it's a
question of how far you think the court should go toward
the outer edges of legitimacy. Or as Scalia would have
said, we should never forget it is the Constitution
of the United States that we are expounding. [CHUCKLES] SPEAKER: We have time
for one more question. AUDIENCE: Yeah, thank
you, Professor, especially for your remarks about
the academic job market. It definitely hit home. I'm just wondering, when we
decide that foreign law is worth examining
and worth studying, there's still a question of
what foreign law to study. And do you think that the
current approach to foreign law is more impermissibly
Eurocentric? Or do you think there's
some value in only focusing on jurisdictions that
are similar to our own and jurisdictions that are more
or less, well, quote-unquote, "respectable"? MARY ANN GLENDON:
It's a great question. And it is the reason why,
when legislatures consult foreign law, as
they do, as you know in other parts of the
world, it's not just foreign law in general. Where do we think we
have the best chance of finding some useful ideas? Now, useful in what sense? Useful in solving a
problem that we haven't solved or are struggling with-- there, you would probably
look to the laws of countries that are at comparable
levels of social and economic development. And that would certainly
not be limited to Europe. So it would depend-- it's why the people who cite
risks of comparative analysis overlook that the legislature
can decide that question. Where is it best to
look and where not? As you know very well. Thank you so much. [APPLAUSE]
