« (SCOTUS Term): Trusting adjudicators on remand | Main | SCOTUS Term: Stare Decisis and Judge-Made Law »

Thursday, June 21, 2018

SCOTUS Term: Finding the Law, Abroad and at Home

Thanks to Howard for the invitation to blog! Amid the morning’s excitement over new opinions, I’d like to add a few thoughts to Cassandra Burke Robertson’s excellent post last week on Animal Science Products v. Heibei Welcome Pharmaceuticals. Animal Science is a sleepy case in a mostly sleepy Term, but it brings up some deep issues, much deeper than the Supreme Court usually faces: what is the law, and how do judges find it?

Animal Science involved a price-fixing claim about Chinese exports of Vitamin C. The defendants said they’d been legally required to fix their prices, and China’s Ministry of Commerce agreed. To the Second Circuit, this was enough: so long as the Ministry’s position was reasonable, it was conclusive. (How could an American court instruct China’s government about Chinese law?) But to a unanimous Court, per Justice Ginsburg, the Ministry’s statement deserved only “respectful consideration”: it wasn’t binding, and U.S. courts would have to make their own judgments.

That all makes sense on the surface, but it raises at least three more fundamental concerns. Are legal questions like these all that different from ordinary questions of fact? Who do we trust to answer them? And what actually makes the answers right? When it comes to foreign law, issues like these aren’t always obvious—suggesting that the answers may not be so easy closer to home.

1. Legal questions and questions of fact. As the Court points out in Animal Science, foreign laws used to be treated as facts—they had to be pleaded and “proved as facts,” subject to rules of evidence and based on expert testimony or authenticated documents. As it turns out, these same rules applied to U.S. states—which were just as foreign to one another, except when the Constitution or Congress intervened, and which therefore needed proof of each other’s laws. (As I’ve argued before, the Full Faith and Credit Clause was mostly about these evidentiary questions: it helped establish what a particular state had said, and left it up to Congress to decide when other states should listen.) Sometimes even a state’s own laws got the factual treatment: courts could take judicial notice of public laws, but private bills were again matters for pleading and proof, as Chief Justice Marshall described:

“The public laws of a state may without question be read in this court; and the exercise of any authority which they contain, may be deduced historically from them: but private laws, and special proceedings of the character spoken of, are governed by a different rule. They are matters of fact, to be proved as such in the ordinary manner.”

Today we do things very differently. Federal and state courts take judicial notice of all kinds of American laws, and FRCP 44.1 and various state equivalents let them do the same for foreign ones. But we haven’t eliminated the basic problem of proving the law. Knowing that judges should answer these questions on their own—without simply outsourcing to juries, rules of evidence, or Ministry statements—doesn’t help us find any particular answers. If we need to know, say, whether French law allows extrinsic evidence of the contracting parties’ intent, should we look to translations of the statute book? To treatises and journal articles? To testimony by experts? And which translations, treatises, or experts should we trust?

2. Who do we trust? Giving only “respectful consideration” to the Ministry suggests that we should be sparing with our trust—making an all-things-considered judgment, looking at all the potential legal sources at once. But according to the Court, at least one kind of source gets special treatment. When a U.S. state court rules on an issue of state law, that ruling doesn’t just get “respectful consideration”; it’s considered as “binding on the federal courts.”

Why so? It’s easy to explain why federal courts might defer to Ohio courts on Ohio law, just as the Second Circuit would usually defer to the Sixth—they see more Ohio cases, so they probably know what they’re doing. But that doesn’t explain why the decisions would be binding, as opposed to just getting  extra-respectful consideration.

Maybe there’s something special about common-law courts. Maybe we might say, with Hale, that the decisions of our courts might be “less than a Law, yet they are a greater Evidence thereof than the Opinion of any private Persons, as such, whatsoever.” (When it came to the construction of “local statutes or local usages,” Justice Story in Swift v. Tyson would have agreed.) But that’s very different from claiming, as Justice Holmes later did, that whenever a state creates a supreme court it’s really creating a junior-varsity legislature, “as clearly as if it had said it in express words.” Some states might want their courts to establish the law of the state, but others might not. Georgia might want its courts to do general common law; Louisiana might want its courts to do its own civil-law thing; Canada, were it admitted as a state (as the Articles of Confederation once offered), might have its own apologetically polite take on the separation of powers. And if a legal system turns out to be very different from ours—say, with a complex network of informal councils and regional magistracies—we might have no idea which entities even count as its courts, let alone how much “respectful consideration” they’re supposed to be getting.

As I note in a draft paper on Finding Law, that’s one of the core problems with the Court’s notorious decision in Erie Railroad Co. v. Tompkins. Instead of looking to a state’s law to learn about its courts, Justice Brandeis did precisely the opposite—assuming, for bad theoretical reasons, that the law of a state is what the state courts say it is, because that’s just what courts get to do. But American courts don’t establish Chinese law when they decide cases like Animal Science. And they don’t necessarily establish American law when they decide their other cases, either. The powers of courts aren’t facts of nature, but society-specific questions on which different legal systems can disagree.

3. What makes the answers right? If courts can sometimes get the law wrong, what does it mean to get it right? How can we disbelieve the Chinese government about Chinese law, if Chinese law is just whatever the Chinese government actually does?

As Asher Steinberg points out in the comments, in some societies (like Venezuela or the former Soviet Union), government officials don’t always adhere to formal legal sources. Maybe these particular defendants’ hands were forced by Chinese law; but maybe the Ministry officials just issued them orders, the statute-books be damned. If that’s what the officials did, and if law depends on what officials do, then maybe their secret commands really were the law. (Here Steinberg invokes a great paper by Mikołaj Barczentewicz, to which Will Baude and I are currently at work on a reply.)

But law is more than what legal officials do. If the defense in the case were just ordinary duress, it wouldn’t matter whether the threats were backed by legal force (or whether, say, Al Capone had told them to fix prices for Vitamin C). Instead, the defense cited “principles of international comity,” which we usually extend to foreign governments as they’re legally constituted, and not to rogue officials on a frolic of their own. If the officials were supposed to be able to order price-fixing, under some applicable statute or common-law doctrine, then it wouldn’t matter so much if their order were secret or open. But if not—if the officials were departing from what everyone else in the Chinese system (judges, experts, law schools, and so on) would describe as Chinese law—then it’s hard to say that what they were doing was really lawful. That’s why we speak of places like the USSR as having had problems with the rule of law: because in those societies, the law wasn’t always what ruled. As far as diplomacy goes, we might want to respect official actions merely under color of law, just to avoid annoying the officials with whose governments we negotiate. Yet we still shouldn’t confuse official actions with the law—either abroad or at home.

Posted by Stephen Sachs on June 21, 2018 at 12:38 PM in 2018 End of Term, Civil Procedure, International Law, Legal Theory | Permalink


Thanks for the response! This will, indeed, be covered at greater length. But I wonder if there's something of an elision here between openness and writtenness. There's nothing odd, theoretically speaking, about written legal rules having to share space with unwritten ones (say, the Sherman Act and international comity). What’s interesting is when rules that are openly acknowledged as *legal* rules routinely give way to other rules that aren’t. The Soviet system had plenty of ordinary law (no stealing hubcaps), which it enforced in the ordinary way. But it also had occasional and unpredictable interventions (let the Central Committeeman’s nephew off easy), by means that weren’t quite in the acknowledged chain of command, on grounds that weren’t quite acknowledged as legal reasons.

We want a vocabulary that can handle situations like this--say, where bribe-taking by is legally forbidden and also de rigeur (even on an established schedule!), or where a constitutional right against voting discrimination turns out to be useless against county registrars. There’s a difference between a place where the dictator’s will is law, and a place where anyone who crosses the dictator gets accused of *something else* and ends up executed. The best way to handle these conflicting situations--for descriptive reasons, regardless of moral ones--might be to say that there can be a bunch of systems of social norms in force at once, not all of which are "the law."

If the acknowledged rules were really acknowledged only as shams, like the “rules” of professional wrestling, then maybe there’d really be only one set of actual rules in place--in which case maybe you’d be right that they, and not the shams, would be the positive law. (And acknowledged *by whom* is an important issue here, which we'll need to address at length.) But that might involve a deeper divergence between theory and practice than these examples do--or than that shown by the modern Supreme Court.

Posted by: Stephen Sachs | Jun 24, 2018 11:31:13 AM

First, I just want to say that international comity is one thing, but the "foreign sovereign compulsion" defense, on which the district court ruled but the Second Circuit did not, sure sounds like a duress defense to me.

Anyway, someone like me certainly has to concede that law is more than just what officials do (and less than everything that officials do) and that officials can break the law. But someone like you might have to concede that in a nation (supposing there are such nations) where there is an enormous mismatch between written law and actual governmental coercive practices, where a lot of regulation has no written authorization, and where complaints that regulators aren't following written law are about as cognizable as complaints that some present-day English policy is inconsistent with the Magna Carta, that the actual practices of officials in those nations is more descriptive of those nations' law than what they write in regulations. It all just depends, if you're a positivist, on what the individual society's rule of recognition is, and how concerned it is with written law.

So when you say, "if the officials were departing from what everyone else in the Chinese system (judges, experts, law schools, and so on) would describe as Chinese law—then it’s hard to say that what they were doing was really lawful," I think I agree, except that it's easy to imagine a society where people in law schools, or even judges, know very little about their society's real law. (Listing judges and law schools as the relevant experts stacks the deck in favor of a certain kind of legal system.) But when you then say "That’s why we speak of places like the USSR as having had problems with the rule of law: because in those societies, the law wasn’t always what ruled," that sounds like anti-positivist Fullerian dogma about what law just is, because I seriously doubt that officials in the Stalinist system were departing from what everyone in the Stalinist system would describe as Soviet law. Rather, I think they might say that Soviet law revolved around Stalin's whims (hyperbolically speaking), from which their written "law" departed. And I don't see anything so strange or non-legal about a legal system whose rule of recognition is "did the dictator/monarch command this or not?", with some written detritus and sham trials to curry favor with naive foreign observers.

Now, I think there is an excellent positivist argument that if no one but Stalin and a few officials at the very apex of Soviet government knew that Stalin's whims, rather than publicly promulgated law, were what ruled, they would not be law -- i.e., that while positivism can countenance secret laws, the rule of recognition itself cannot be a secret. But if the claim is (as it was in the paper that started the exchange between you and Barczentewicz) that (1) when the Supreme Court writes superficially originalist opinions that a couple of law professors diagnose as originalist, but that the vast majority of experts, practitioners who have to figure out how to win cases before the Court, and even non-lawyers think are really doing something else, though they might *say* they're doing originalism, (2) the law is originalism, not what everyone thinks the Court is really doing, because originalism is what the Court says it's doing, that isn't an argument against a secret rule of recognition; it's just an argument for law as writtenness, and a very literal way of reading written law at that that ignores what's implicit to virtually everyone in what's being written. But I look forward to reading your reply to Barczentewicz.

Posted by: Asher Steinberg | Jun 23, 2018 7:16:49 PM

Just typical illustration :

One American can like or dislike Trump as the president , that is normal and common . Yet , No American , would rely on Trump for interoperating even not the federal constitution . So , he is a president . And even no less or more than others or previous presidents . Yet , for opining on the law governing the US , or even the constitution , no one would even put …… on it , surly not a court , either in US , or somewhere else .

The same goes for that Chinese case or officials ……


Posted by: El roam | Jun 21, 2018 2:53:16 PM

That post , is trying indeed to make some sense or order in such complicated issue , but beyond further crazy complications ( that the post with all due respect , is far from really touching it in coherent manner ) in that Chinese case in the Supreme court , the Chinese argued or referred directly to the Chinese law itself , here I quote :

" The Chinese sellers moved to dismiss the U. S. purchasers’ complaint on the ground that Chinese law required them to fix the price and quantity of vitamin C exports."

So , official practice or whatsoever , has nothing to do , when the issue is : what the law or Chinese law is dictating . One read indeed :

" Chinese law required them to fix the price …" not Chinese officials required it allegedly . However :

When dealing with the law , only authorized legal experts , can interpret the law officially , in a binding manner . It is Universally so . You can't be a lawyer typically , or a judge , without , studying the law , passing exams and being registered in bar association or chamber or whatever . A minister , is not authorized , and not capable either to testify and interpret the law , directly , and in court , and that's it !!
So , the court , should look for a " Double or Bi authorized " legal expert . That is to say : that in that case , a lawyer , authorized in the US , having also a law firm in China and authorized there ( there are many of such ) had to testify and opine directly in the court .

For the rest , we won't stay young here ….


Posted by: El roam | Jun 21, 2018 2:34:27 PM

The comments to this entry are closed.