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Globalization has touched virtually every sector of our society, including the courts. This has been confirmed, among other ways, by the increasing influence seen recently of international law on U.S. Supreme Court decisions, and the rise in the number of U.S. cases governed by international law. The U.S. Supreme Court’s 2002 term generated a good deal of controversy over the court’s references to international law in reaching two of the most significant rulings of the term- Grutter v. Bollinger, 123 S. Ct. 2325 (2003), and Lawrence v. Texas, 123 S. Ct. 2472 (2003). In Lawrence, the court held that a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violated the due process clause. In reaching this decision, and overruling its earlier decision in Bowers v. Hardwick, 478 U.S. 186 (1986), the court relied in part on the fact that other nations have refused to criminalize homosexual conduct. The court cited, among other things, a 1957 report to the British Parliament recommending repeal of laws punishing homosexual conduct-a recommendation that Parliament enacted 10 years later. The Supreme Court also found persuasive the 1981 ruling of the European Court of Human Rights in Dudgeon v. United Kingdom, which found that the laws of Northern Ireland proscribing homosexual conduct were invalid under the European Convention of Human Rights. The U.S. Supreme Court credited the arguments of amici curiae that laws criminalizing consensual same-sex conduct would be inconsistent with international law. In Grutter, the Supreme Court held that the University of Michigan Law School’s narrowly tailored use of race in admissions decisions did not violate the equal protection clause. In her concurrence, Justice Ruth Bader Ginsburg noted that the majority’s opinion was in accord with “the international understanding” that affirmative action should end at some point, citing the International Convention on the Elimination of All Forms of Racial Discrimination (ratified by the United States in 1994) and the Convention on the Elimination of All Forms of Discrimination against Women (not yet ratified by the United States). Generating controversy These references to international law are surprising to some, and have generated controversy-even within the court itself-over the extent to which the court should rely on international law to decide domestic cases. In Atkins v. Virginia, 536 U.S. 304, 316 (2002), Justice John Paul Stevens, writing for the majority, noted that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” This remark drew strong dissents from Chief Justice William H. Rehnquist and Justice Antonin Scalia on the grounds that “the viewpoints of other countries simply are not relevant,” and that international “notions of justice are (thankfully) not always those of our people.” Id. at 325, 348. These views contrast sharply with those offered by Justice Sandra Day O’Connor in a keynote address last year to the American Society of International Law: “While ultimately we must bear responsibility for interpreting our own laws, there is much to learn from other distinguished jurists who have given thought to the same difficult issues that we face here.” 96 Am. Soc’y Int’l L. Proc. 348, 350 (2002). Ginsburg was even more emphatic in a recent address to the First Convention of the American Constitution Society on Aug. 2: “Our ‘island’ or ‘lone ranger’ mentality is beginning to change. Our Justices . . . are becoming more open to comparative and international law perspectives. The term just ended may prove a milestone in that regard.” See www.americanconstitutionsociety.org/ pdf/Ginsburg%20transcript%20final.pdf. In fact, the Supreme Court has long looked to international law and foreign decisions as persuasive authority. As Justice Horace Gray famously held in The Paquete Habana, 175 U.S. 677, 700 (1900), “international law is part of our law,” and “where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators.” Eighty years earlier, Justice Joseph Story, writing for a majority of the court in United States v. Smith, 18 U.S. 153, 160-61 (1820), held that the law of nations “may be ascertained by consulting the work of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognising and enforcing that law.” See also, e.g., Zadvydas v. Davis, 533 U.S. 678, 721 (2001); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 403 (2000); Washington v. Glucksberg, 521 U.S. 702, 710, 718 n.16 (1997); and United States v. Alaska, 503 U.S. 569, 588 n.10 (1992). Sale of goods cases The Supreme Court’s recent references to international law also come at a time when U.S. courts, due to the rise in cross-border transactions, are increasingly facing transnational cases in which international law is not merely persuasive, but actually provides the governing law. An example of this trend is the notable rise in the number of U.S. cases governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG), 15 U.S.C. App. The CISG, with 62 signatory nations, functions as an international form of the Uniform Commercial Code, applicable to contracts involving the sale of goods between parties whose places of business are in different states, so long as both states are contracting states or the rules of private international law lead to the application of the CISG. Its purpose is to provide a uniform body of international law to govern the sale of goods. During the first 10 years following the United States’ ratification of the CISG (in 1986), there were relatively few U.S. decisions construing it. The past five years, however, have marked a significant increase in the number of CISG cases decided by U.S. courts, with more than 35 reported decisions. These decisions reveal the apparent difficulty that U.S. courts are having in consistently applying international law as a rule of decision. As a threshold matter, U.S. courts (and counsel too) often have trouble researching international law and foreign decisions. Fortunately, foreign decisions applying the CISG are catalogued in a database maintained by Pace University Law School. See www.cisg.law.pace.edu. As Justice Stephen G. Breyer recently noted: “Neither I nor my law clerks can easily find relevant comparative material on our own. The lawyers must do the basic work, finding, analyzing, and referring us to, that material. I know there is a chicken and egg problem. The lawyers will do so only if they believe the courts are receptive. By now, however, it should be clear that the chicken has broken out of the egg. The demand is there.” Stephen G. Breyer, Keynote Address Before the 97th Annual Meeting of the American Society of International Law, April 4, 2003, available at www.supremecourtus.gov/publicinfo/speeches/sp_04-04-03.html. Beyond this practical difficulty, U.S. courts have disagreed over the extent to which they must consider rulings of foreign tribunals in cases governed by international laws such as the CISG. In Air France v. Saks, 470 U.S. 392, 404 (1985), the Supreme Court held that “the opinions of our sister signatories [are] entitled to considerable weight.” But how much weight? Are foreign decisions binding upon U.S. courts? If not, are they nevertheless a persuasive source of authority? And if they are, are U.S. courts obligated to consider foreign precedents in applying international law? The Supreme Court has been asked to resolve these very questions in the case of Zapata Hermanos v. Hearthside Baking Co., 313 F.3d 385 (7th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3589 (March 11, 2003). In Zapata, the 7th U.S. Circuit Court of Appeals construed the meaning of Art. 74 of the CISG-deciding that attorney fees may not be recovered as a form of consequential “loss” under Art. 74 because the issue is a procedural matter governed by domestic law. Although foreign tribunals had previously addressed this question, the 7th Circuit made no reference to any foreign decision. Nor did the 2d Circuit in Delchi v. Rotorex, 71 F.3d 1024 (2d Cir. 1995). Other U.S. courts, however, have prominently discussed and considered foreign rulings in construing the CISG. See, e.g., Usinor Industeel v. Leeco Steel Prods. Inc., 209 F. Supp. 2d 880, 886 (N.D. Ill. 2002); Medical Marketing Intern. Inc. v. Internazionale Medico Scientifica SRL, 1999 WL 311945, at 2 (E.D. La. 1999); St. Paul Guardian Ins. Co. v. Neuromed Medical Sys. & Support GmbH, 2002 WL 465312 (S.D.N.Y. 2002). International treaties U.S. courts also disagree as to the role, if any, that U.S. law should play in construing the terms of international treaties. In Zapata, for instance, the 7th Circuit held that the recoverability of attorney fees as a form of “loss” under the CISG is governed by the “American rule” of U.S. law. In contrast, the 11th Circuit in MCC-Marble Ceramic Center v. Ceramic Nuova D’Agostino, 144 F.3d 1384, 1391 (11th Cir. 1998), refused to apply the U.S. parol evidence rule in a CISG case because “[c]ourts applying the CISG cannot . . . upset the parties’ reliance on the Convention by substituting familiar principles of domestic law when the Convention requires a different result.” See also Geneva Pharmaceuticals Technology Corp. v. Barr Laboratories Inc., 201 F. Supp. 2d 236, 287 (S.D.N.Y. 2002). In addition to the CISG, international laws play an important role in antitrust enforcement, the recognition and enforcement of intellectual property rights and the recognition and enforcement of arbitral awards. The Warsaw Convention also continues to play a central role in cases involving international air travel. See, e.g., Magan v. Lufthansa German Airlines, 2003 U.S. App. Lexis 16458 (2d Cir. Aug. 12, 2003). Even in applying domestic laws like the Alien Tort Claims Act and the Foreign Sovereign Immunities Act, U.S. courts frequently rely on international laws and foreign precedents. See, e.g., Alvarez-Machain v. United States, 331 F.3d 604 (9th Cir. 2003). District courts have great latitude in deciding questions of foreign law pursuant to Fed. R. Civ. P. 44.1 and Fed. R. Evid. 706. For instance, while courts can engage expert witnesses to determine foreign law, such expert assistance is not required. In fact, recent decisions suggest an increasing tendency by U.S. courts to rely upon parties and upon the courts’ own research in determining and applying international law. These and other similar issues are certain to continue challenging U.S. courts. Given the frequency with which U.S. courts are being called upon to apply international laws and foreign decisions, the time has come for the courts to develop a consistent framework for ascertaining and applying international law in U.S. cases, particularly when international laws provide the governing rules of decision. Javier H. Rubinstein is a partner in the international arbitration and litigation group at Chicago’s Mayer, Brown, Rowe & Maw. He is counsel of record for the petitioner in the Zapata case discussed in this article. He is also a lecturer at the University of Chicago Law School, where he teaches international commercial arbitration and litigation and U.S. Supreme Court litigation, Violeta Balan, a summer associate at the firm, assisted in the preparation of this article.

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