talk about art and american history in today's world. tomorrow, on "washington journal," a discussion of the new health-care bill and what is ahead for congress after the easter recess. the president and ceo of the consumer data industry association talks about credit reports. a georgetown university professor has a look at how presidents learn how to do the job. that is live at 7:00 a.m. eastern on c-span. . .

>> supreme court justice stephen breyer discusses whether it is ok to use foreign law. this is about an hour in 20 minutes. -- an hour and 20 minutes. >> my goodness, i think we have already let justice breyer know how interested we are in what he has to say. good afternoon. i am the dean of sais.

it is my great pleasure to welcome you to the 2010 rostov lecture with the honorable united states supreme court justice stephen breyer. before i introduce justice breyer, who needs no introduction, i want to give a very brief history of the rostov lecture series. it was established in honor of her late husband, the president and chief executive officer of trans ocean imports. our lecture series pays special tribute his life and abiding interest in international spheres. he was a graduate of johns hopkins university and an unflagging supporter of sais. i would like to recognize his

son, wife, and daughter, and her husband who are in our audience, as well as some of their family and friends. welcome and thank you. [applause] m a justice breyer is here to share his views on the court and foreign law -- >> justice breyer is here to share his views on the court and for law. 9/11 has tested our own nations insularity. within our country, throughout history, the question -- to what extent will we be influenced by others -- has proven to be polarizing in ways unknown to most nations in the international system. large continental states an important island states have the luxury of this detachment. even as the facts of technology and commerce, tourism and strategic warfare, have corroded

the underlying reality, within the supreme court, the same cultural battles may be playing out. should boren law be used to interpret the u.s. constitution -- a foreign law -- for a long -- foreign law be used to interpret the u.s. constitution and if so, how? he was confirmed in 1994. it was a culmination of an illustrious career. he was going and raised in northern california. he attended a well-known public high-school in san francisco. it was important experience. he said it did that it is true that there were a lot of people who were still excluded -- he said, "it is true that there were a lot of people who were still excluded from possibilities. for the rest of us, you had a

great mixing of glasses. anyone could go. there were a mix of families. they all felt an obligation to be part of the community and contribute to the community." most observers would agree that these twin ideas of opportunity and open communication -- communities have proven enduring. after graduating from stanford in 1959, justice breyer studied philosophy and economics at hofstra on a marshall scholarship. he went on to grabber away from harvard -- he went on to graduate from harvard law school. he clerked for justice arthur goldberg on the court. he worked briefly as a lawyer in the antitrust division of the justice department and then was recruited to teach at harvard law school. he is a most extraordinary teacher. in 1974, senator ted kennedy

named him to the special counsel to the senate judiciary committee where he soon became the committee's chief counsel. president jimmy carter appointed stephen breyer to the u.s. court of appeals for the first circuit, where he then became the chief judge in 1990 and then served as a member of the u.s. is still conference -- judicial conference and the influential sentencing commission. he is known not only for is opinions. he is also celebrated for his scholarship and teaching. from his book "active liberty," we know that he believes that law should be interpreted through the lens of language, history, tradition, purpose, and consequences. above all, that interpretation enables democracy. it was a serious objector of the framers that people participate

in the political process, he has said. if people do not, the country cannot work. it is a great honor to have him here when we can participate in this discussion of foreign law and the courts. please join me in welcoming supreme court justice stephen breyer. [applause] >> thank you. that is a very nice introduction. you realize the point is to get you interested in what i am going to say. it is only fair to bow out that once a reviewer got -- to point out that once our reviewer got a hold of my book that this was the review. he said, in alice-in-wonderland alice emerges from the pool of tears with the dormouse.

the dormouse reads the history of england. why are you reading that? this is the driest thing i know. [applause] he said, this is before breyer wrote this book. it lets dampen our expectations. it is very nice for me to be here. i associate your founders -- and they were always great diplomats who set the agenda for the next 100 years. there are always walking in the woods, were they not? it is beautiful outside. you pulled the curtains and you cannot see the woods where we really ought to be walking. but there we are. those pieces will -- those people also set an agenda, and it is extraordinary how long it has lasted. 50 years, at least, and probably longer. it has big words attached --

democracy, peace, freedom, and prosperity. and that was going to work through cooperation. who are we? we are, in a sense, we could say foot soldiers, but that is to militant -- too militant. we are the professional people who are in part to carry out that vision. maybe not all of you are. very few presidents of countries know what to do. i would like at least 12, but not even one ever has. -- one to, but not even one ever has. we're professionals. the question is what we do to participate in this. it is a good image. cooperation in many different ways through what professionals will do.

what i do in the next 20 minutes or so is try to give you a picture of what i, as a professional judge, have to do with this enterprise. when i say i, i am not speaking personally, i mean our court. i think i can best do that and show you how that is involved over time if i classify the kinds of questions we have in just three kinds of questions. the first is going to be really exciting questions that produced terrific political arguments and are terribly, in my opinion, an important. category #two will be a big letdown. it is going to be very boring questions. they are terribly important. because almost no political -- because all snow political benefit, but provide -- almost

no political benefit, but the ride challenges. category three is important. let's go to our first category. should the supreme court of the united states, or should other judges, look at what other foreign courts do when they decide major questions of constitutional law? that is a great question. i knew that was going to be politically interesting. we had one of these meetings and sometimes they have interbreed meetings to get everyone to work together well. -- enterand branch -- interbra nch meetings to get everyone to work together well. this subject came up. a member of congress said this document is an american constitution. why in heaven's name do you

refer to cases -- he did not make it personal. he says, the supreme court is referring its decisions made by -- are offering to decisions made by foreign courts when they interpret the document. -- are referring to decisions made by foreign courts when they interpret this document. why do they do that? i said, i guess you mean me, because i have done that quite a lot. he said, perhaps i do. i said, the reason i do that is the following. we live in the world that is ever more interested in democracy. more countries have independent judiciary spirit more countries have constitutions or similar documents to protest -- have independent judiciaries. more countries have constitutions or similar documents to protect democracy.

if i see someone who enter but the document is somewhat like me and my country -- to enter ports -- to enter earth's -- if i see someone yowho interprets the document somewhat like me or my country -- he said not to refer to it in my opinion. i should have known when to quit. there is more to it than that. if i'm honest with you, some of those countries are struggling to maintain a democracy, independent judiciaries. they often refer to our decisions. if i right in my decision something that points out that i have read a case of theirs, even if i disagreed with it, they know their cases are being read

and they can go to their legislators and say, we have our role here. it helps show that we have an important role. it helps them establish that democracy in production for liberty. great. -- democracy and protection for liberty. great. he said to write the letter. i realize i will not get anywhere in this political debate. it comes up sometimes. not all of the time. we meet sometimes. we just had an exchange with some canadian judges. there will be german judges coming here next year. we've been to india and they have been over here. the judges from luxembourger, and we talk to them and have a substantive -- the judges from luxembourg, and we talk to them and have substantive meetings. -- from luxembourg come and we talk to them and have

substantive meetings. if you can have discussions on issues and questions and it is not just i do it this way or that way, you actually exchange information and learn from each other, which is normal. no one is going to tell me, however good it sounds politically, no one is going to say i cannot read what i want. what i say, and others who do the same, it does not bind us and we know that and understand that this is the american constitution. what can i not read it? i do read it. if i read it, why can i not refer to it. i know it is not binding. if you write a law review article that is relevant, i will read and cite its. -- cite it. that is my view. i made this argument and i guarantee people still got up and said, this is the american constitution, why are you referring to foreign courts?

i say that is irrelevant. when i read things, i can read what i want. what is really happening, more and more, is people are learning from each other. sometimes they reject what the other person has done, never do they think it is binding. that is a sociological fact, not a leap. the law does not change that much, except we may have a more informed opinion, for which i see nothing to complain about or no need to be apologetic. that is an important issue. from a legal point of view, it is not overwhelmingly important. if some people do not want to read for an opinion, fine, do not read them. -- read the for an opinion -- read the foreign opinions, do not read them. i want to go to category two, which i think, as boring as it is or will be when i explain it, it in fact is much more important.

what i mean by category two is simply to look at the agenda and a list of cases which is being fully considered by the supreme court of the united states in this year, last year, compared him to 20 -- comparatively to 20 years ago. you'll see an enormous growth in the number of cases. there is no disagreement about this. everyone on the court will certainly believe a knowledge of foreign law perhaps international -- foreign law, perhaps international, is necessary or helpful to the decision. we only hear fully about 80 cases. i counted nine that involved some kind of issue like that. three of the more guantanamo -- three of them were guantanamo. one was a vitamin company in

ecuador buying vitamins from a dutch company, wanting to say there is an international cartel of which the united states has one member and ecuadorian company wants to suit under our antitrust laws in new york. -- sue under our antitrust laws in new york. can they do it? it is not an easy question. why did they want to do that? we have a lot of things that country's -- other countries do not have, and there is some economic advantage to them doing it here. it was a tough question. to know the answer to that question satisfactorily, i think i had to look at and know about a european antitrust law. i knew about it because they filed briefs.

canada filed briefs. japan filed briefs. if i go yesterday -- two days ago, we have a case in front of us involving the reach of the securities and debt -- anti- fraud provision. what happens to fraud committed in the united states which affects a buyer in europe or austria? we have briefs filed by france, england, australia, and they are not just briefs as they used to be. but are designed to show that -- they are briefs that explained thoroughly what the reasoning is, where the conflict are, and why it is a problem. -- where the conflicts are, and why it is a problem. a company in los angeles wanted to get information in a federal court belong to another los angeles company. under a federal discovery

statute, the competitor wants to read your information. they say they do not want to give it to them. they say, we want it, so we can give it to the anti-cartel authorities in europe. the europeans said they did not wanted. again, we have a lineup of countries telling us both ways. nobody thinks that is irrelevant. we had mrs. -- what was her name? in the klimdt paintings. does anybody know that? oh, my goodness. i have reached an age. most of the things i remember very clearly never really happened. [laughter] she brings a suit in los angeles. her grandparents were -- were great uncle lived in vienna and the nazis took one of the paintings are brilliant.

it is hanging in the museum in vienna. she thinks she is entitled to it. it is a very difficult question. the question that came up to the court was whether she, if she sued in los angeles, the museum could assert a defense of sovereign immunity. we are part of a government. for technical reasons, there were certainly in the 40's, but in the '70s and '80s, they might fall in it an exception -- might fall in an exception. where do you look to find out if it is sovereign immunity? what are we looking at, then or now? i found a helpful case in paris, in the court of appeals. it was a great case of christian dior. the ex-king did not pay the bills and so he was sued.

he exerts sovereign immunity. the judge as you working, you are not king, so you have no sovereign immunity. that helped me decide the case. i am try to give you a picture of the world. we had, in that year, a case of nafta where nafta has certain requirements as to what the president can do. can progress -- congress makes it tougher to bring the trucks in from mexico which is an environmentally-based law? does it violate nafta? that is a hard question. you have to look to treaties and how they work to resolve that. we have the warsaw treaty, which has to do with airline liability. the people who are most against using international law -- of course, where you have a treaty, of course you look to how other nations interpret it when you

are looking to your own interpretation. you have to. it is normal. what do we do with very hard questions? this year, we had it. we have had other years. there is an alien tort statute which gives anybody the right to bring a lawsuit in new york or any other place in the united states to recover money from anyone in the world who has violated international law and heard them. why did they pass that statute in 1790? they were thinking of pirates. if you find a part, here is what you do -- hang him during -- if you find a pirate, here is what to do -- hang him. i am overstating. the point is, who are the pirates today? because the statute is still there. what is the equivalent? to really go into that, it is

harder than you think. it is not just a question of waiting the morality of the various -- of waiting -- of weighing the morality of barry's bad acts. -- of various bad acts. somebody start suing all kinds of people. henry kissinger is the example. you're always worried that the belgians will put him in jail or somewhere else. the problem legally is, to have all rule in the united states -- a rule in the united states, that it is generalized in a world without the supreme court act and harmonize things, that the rule will work elsewhere. it is a tough question. to answer those, of course you have to know something about international law and how laws

of other countries work. that is the world today. that is the problem i am putting to you. it is a boring, detailed problem. it happens now. it happens more and more. in a world where protections against what i call arbitrary behavior, which is shorthand for human rights, where more people all over the world are wanting and getting protections in that respect, it is something more and more american judges have to know about. i hate to make his confession, but i do not have universal knowledge. -- make this confession, but i do not have universal knowledge. the lawyers tell me in their briefs. that means they have to know. the lawyers also do not have universal knowledge of everything. they have to learn how to look

things up. that is what they learn in law school. law school basically gives them some substance, quite a lot. it gives them lessons in how to look things up. they call it the socratic method, which is simply a device designed to portray that this is a very exciting thing. [laughter] but this is what has happened. it is circular. the law school's or you, if you are taking a course in law, have to bring these kinds of lot of other nations, how to look it up, but all of international bodies, how to look up. gospel lot of international bodies, how to look it up. -- paul lot of international bodies, how to look it up. he found more than 1000 organizations that are international in the sense that

they make law -- like the imf or the wto to make laws and rules that are more than buying -- are binding on more than one nation. my point is that you have to teach things perhaps like that, not to the professors. do not have a special course called "international law." people may or may not take it. something of this should come into a course in contracts and tort or business law or other places. i am trying to show you that lots of people are involved, that these administrators, as we are, or professionals, as we are, have much work to do. the courts, the judges, lawyers, those who train them, who say

they are willing to hear. that is the problem i see is very important. i will give you a little taste -- just a little bit more topical and interesting -- of where this can come up. it is a very interesting legal question in very difficult. it is so technical and so hard that people do not write much about it. it was hard for me to learn about. if they had paid more attention to what went on in other countries, my job might have been a little easier. unfortunately, it arises in a very emotional context which has to do with the death penalty. that was the context of the issue. the issue is the same as exists where it has nothing to do with the death penalty. it has to do with commercial law, copyright, intellectual

property, inheritance -- this is the problem. in article virgin islands of the constitution -- article vi of the constitution, it says, "the constitution and laws of the united states pursuant to the constitution and all treaties made or which should be made under the authority of the united states, all treaties made under the authority of the united states shall be the supreme law of the land, and the judges in every state shall be bound thereby." anything in the constitution or any loss notwithstanding -- in the laws -- and any laws notwithstanding. what does that mean?