Sandra Day O'Connor
Thank you so much. Thank you. Thank you President Venugopal. I have the privilege of meeting your president Venugopal in India a couple of years ago when I went to give a lecture there named for his father, who was also a most distinguished attorney in India. And I'm so pleased to be able to come here to this wonderful city of Philadelphia tonight. The birthplace of our nation's constitution and an absolutely wonderful city. So you chosen a great place for your making. Technology is constantly shrinking our world. From cellular phones to fax machines, beepers to email, satellite communications to the internet. new forms of communication have enabled us to talk to each other, whenever and wherever we happen to be. But it takes more than technological capability to enable people from different nations to communicate effectively with each other. People from all nations need language skills, they need a deeper understanding of foreign cultures, and they need deeper familiarity with foreign traditions and values. A nation's ability to meet these needs will largely determine its ability to cope, and what has become an increasingly multinational environment.
The United States is just beginning to recognize these needs. High Schools here, which wants only talk French and Spanish, as foreign languages now offer Russian, Japanese, Chinese, Arabic and a host of other languages as well. American businesses have also responded to the increasing globalization of brain, McDonald's and Moscow, Kentucky Fried Chicken and Beijing. And these trends have been echoed in other countries. Unfortunately, lawyers and judges both in America and across the globe have been somewhat more reluctant to change. We tend to forget that there are other legal systems out there systems that are often just as developed as Our own for America's part. I believe the short sightedness begins in law school, where American lawyers learn to look primarily and often exclusively at the decisions of their own state courts. And when in federal court, unless the Supreme Court has spoken to an issue, judges and lawyers alike look to the law of their own circuit and perhaps district. I suspect that those of you here from other countries with different legal systems have noticed a similar focus among your colleagues. A focus on the law that's familiar and immediate. To an extent such nearsightedness is understandable, because at least in the common law tradition, the only precedents that are truly binding in a given jurisdiction are the decisions of our own ports. Regardless of its origins, however, this lack of vision should not simply be ignored as benign. I believe that lawyers and judges worldwide must learn to view the law with horizons that go beyond our own jurisdiction. There is a growing need for lawyers to have more and better international legal education. By education, I mean not only classroom study of foreign legal systems, but have a heightened awareness among legal practitioners and every nation of the laws of practices and innovations, existing and occurring and other nations. There are many reasons why such an awareness is increasingly important. And tonight, I want to comment on only for first in a world of increasing international links between nations. Lawyers must be aware of international law and foreign legal systems in order to facilitate successful multilateral cooperation. Second, in the face of expanding global prayed, lawyers increasingly need to develop an understanding of foreign legal systems and law to better serve their clients overseas. Third, lawyers and judges from every nation may draw useful lessons for their own legal systems from the jurisprudence of other nations. And finally, by understanding how their own laws interact with those other countries, nations can find better ways of coordinating procedures across all jurisdictions that facilitated Rams national commerce and dispute resolution. Many of the discussions that you will participate in over the next several days at this the 41st Congress are important ones because they can be viewed as steps toward helping lawyers worldwide. Gain heightened international awareness that they need in our more interdependent world.
And understanding of other legal systems is important first and perhaps foremost, because there's a large and ever growing number of legal disputes between nations and new forum are deciding these disputes. These are changes in how we resolve conflicts among nations, and disputes that transcend national borders. multilateral legal cooperation has in many senses had its genesis in the protection of human rights. One of the main themes of this Congress, it still plays a premier role in that regard. For example, the conduct of the International Military Tribunal at Nuremberg, after world war two reflected an unprecedented level of multilateral cooperation It was really a watershed in promoting the rule of law among nations. direct descendants of that Norenberg tribunal are playing a role today in aiding the international community to prosecute and punish those responsible for the atrocities recently witnessed in Yugoslavia and Rwanda. Today, new international institutions are proliferating faster than at any time since the years following World War Two. We witnessed the development of several new multinational Development Bank since 1989. Three environmental bodies since the UN Earth Summit in 1992, and new multinational bodies that have come in and into being under the North American Free Trade Agreement, free trade agreement, as well as the worldwide round up gap. Each of these new institutions incorporate A panel or a tribunal to resolve disputes that inevitably arise among the signatory states and their citizens. As these international tribunal gain strength in numbers and authority, the need to understand the laws under which they operate, and the legal systems of the signatory nations becomes very important. The structure of the individual national laws and signatory nations can't help but influence the way in which these international organizations function as well as their effectiveness. A failure to appreciate the legal structure of a signatory nation may impose obstacles both the international diplomacy and the dispute resolution. In the United States, for example, both international agreements and the judgments of multinational tribunal's may only be enforced to the extent they comply with the United States Constitution. The President has no power, for example, to enter into an agreement or enforce a decision that would impose an unconstitutional taking of the private property of American citizens. Unlike the High Courts of many nations, the United States Supreme Court has both the authority and the duty to invalidate any legislation or executive action that violates the constitutional rights of our citizens. These constitutional doctrines of separation of powers limit the ability of our country to agree to or abide by certain international agreements. Nevertheless, in the area of foreign relations, United States Courts have recognized the primary role of the political branches of our governments to formulate policy according to their judgment of the nation's best emphasis. Our courts have Recognize that of the three branches of American government, it is the Congress and the President who are best equipped to coordinate a uniform and effective foreign policy. As a result, our courts have largely deferred to the decisions of the other branches of government in the area of international readings. This general principle of deference to the other branches of government in matters of foreign policy has been expressed in at least two judicial documents, the political question doctrine and the active state doctrines, both of which recognize that the structure of our own constitution denies the judiciary, its traditional role and conflict resolution over certain types of
questions, those often those involving international relations in some other nations courts, play a more active role in the conduct of Foreign Affairs, then in the United States, and with each new, free nation that has developed and is joining the organizations of the free world in an attempt to act globally rather than merely locally, the legal complexity of international relations roads, and understanding of foreign legal systems law is really essential to help us in our continuing efforts to expand the effectiveness of our vehicles for deciding international disputes and desperate assuring the continued peace among nations. It's interesting that this year for the first time, more than half of the nations of the world can be counted on the side of free and democrat Traffic nation states. And it's also interesting that slightly over half of those nations are represented here today at this conference. Now, an understanding of international law and foreign legal systems is not just necessary to serve the larger goals of international tranquility, their practical needs as well. Today, more than ever, lawyers have to serve their clients and other nations. Businesses that wants served only local markets have extended their operations around the globe. And those businesses must now not only comply with local law, but with the laws of host countries as well. A large American conglomerate with operations in Belgium, for example, must comply not only with American antitrust laws like the Sherman act, but also with the European Union's competition loans to service these international Nobody needs. I know that many American law firms have opened branch offices and foreign cities to provide on site legal advice. Since 1990, for example, the number of lawyers working at the 25 largest New York law firms has increased 6%. With all of that growth occurring overseas. Today, those same firms have more offices overseas than they have in all of the United States combined. Some of these offices are in Brussels or Paris, where lawyers hope to secure holes for themselves in the increasingly unified European Union legal market. other firms have focused on the Pacific Rim with offices in Tokyo and Hong Kong. And NAFTA has prompted other American lawyers to affiliate with Mexican and Canadian law firms and law years from those countries have set up branch offices in the United States. American lawyers have also recognized the benefit of having foreign expertise here in the United States by increasingly utilizing foreign lawyers who passed the bar or who serve as registered foreign legal consultants. Unfortunately, this practice has been focused in large legal markets such as New York, and has had some difficulty reaching less cosmopolitan areas. of the more than 1000 foreign lawyers who took American Bar exams in 1994 1100 of them were in New York. Now the reception of foreign lawyers in the United States varies from state to state, since each state court system may decide who may practice law in that state, but legal exchange for have provided Another outlet for law firms and one company to reach their foreign counterparts and another. Some United States law firms have paired up with British firms to swap lawyers for a few weeks at a time, the lawyers can get a better sense of how another legal system works, and each firm can develop contacts abroad. From Home Business is occasionally referred. One San Francisco law firm has exchange lawyers with Japanese law firms for about 15 years. And a number of its attorneys have learned how to operate in Japan's legal and business culture. This has been supplemented with
weekly classes in Japanese. Now, if these kinds of programs are fostered and encouraged, and continue to grow, I think lawyers worldwide are going to be better prepared to meet the demands of our changing world. And increased international legal awareness is important for a third reason. We learn more about our own laws, when we undertake to compare them with those of another sovereign. I've had the privilege to participate in several legal exchanges with other nations, including one fairly recently with India, Chief Justice Burma who's here tonight, has participated in that. And we have explored our respective approaches to criminal law, administrative law, court management and constitutional law, like living organisms, laws benefit from cross pollination. lawyers and judges should maintain an awareness of innovations in foreign jurisdictions. That was some grafting and pruning might be successfully transplanted into their own legal system. For example, I suddenly have developed an appreciation for the techniques used in Great Britain to select and use journal and the limited nature of discovery in some other countries. And perhaps most importantly, the greater level of deference and civility shown by lawyers to judges in Great Britain, in India, and in some other nations. One of the interesting examples of borrowing foreign legal ideas can be found in the Italian penal code, which was revised about 10 years ago, at least partly to reduce that country's tremendous backlog of criminal cases. Every criminal defendant in Italy had to go through a full blown trial even if he confessed his guilt. Cases often suffered from inordinate delay and an attempt to speed things up. The Italian legislative body looked at other legal systems including that the United States One idea they found useful was the concept of plea bargaining, which puts before the defendants the carrot of a lower sentence in an effort to forego trial. Of course, it's not always possible to import and idiosyncratic institution, from, for example, an adversarial common law system to an end visit for civil law system, at least not without making changes. ideas have to be tailored to fit the legal landscape of the importing.
plea bargaining in the United States is premise Donald system, where prosecutors have broad discretion whether or how to bring criminal charges, and the parties are entitled to negotiate and compromise settled. In Italy. By contrast, judges take charge. Judges traditionally take an active role in the criminal investigation. They examine the witnesses at preliminary hearings and control a decision whether an accused criminal should receive the front. So it isn't surprising that under the new attendant penal code, defendants can't simply plead guilty and move straight to sentencing. All they can do is ask the judge to forego the formal trial and instead decide the case based on the record of the preliminary hearing. If the defendant is found guilty, he's entitled to an automatic one third reduction in his sentence. So, as in the United States, the defendants now in Italy have an incentive to avoid a lengthy, costly trial. In short, we can't expect to simply cut and paste sections from another country's code into our own statute votes. But all nations have much to learn from other legal systems and benefit from studying them and occasionally adapt from them. Finally, I think it's important to emphasize how studying the law of other countries is a joint project. It is not enough to invite other lawyers to visit our country. Or for us to visit there's, we have to compare notes. If we're attentive, we can find ways to harmonize our laws. And that harmony will be increasingly important in a world where litigation often transcends the boundaries that demarcate nations. by coordinating the rules that govern cross border judicial proceedings, we can cut down on time and expense of multinational litigation. Most of you are probably familiar with the Hague service convention, the New York Convention on the enforcement of orbital awards, and other multilateral 3ds negotiated at the highest diplomatic levels. Many of these treaties are designed to lower transaction costs and eliminate barriers. transnational litigation, but there's always more to be done. lawyers and judges operating in the trenches of their own legal systems are equipped to do some good. As some of you may know, I come from the state of Arizona, where we have a particularly close relationship with our neighbors to the south.
The North American Free Trade Association Agreement has had a tremendous impact on the local economy and Arizona about a court of Arizona State exports worth about $2 billion a year go to Mexico, but trades arms legal disputes, and all of us lawyers and judges alike, inevitably find ourselves working to solve problems that stretch across national borders. Since the passage of now that there have been several initiatives among the bench and bar in Arizona to promote cooperation with Mexico. One example that stands out is a meeting in 1992 between the judges from the Supreme Court of Arizona, and their counterparts from the Mexican state of Sonora. The judges map to discuss judicial cooperation in the fields of Service of Process, cross border collection of evidence, and enforcement of foreign country judgments. As one of the first steps in this newly formed relationship, that judges tried to understand the procedures in each other's jurisdiction. from that starting point, they look for ways to make it faster and less expensive to chart one's way through the labyrinth of cross border litigation. They came up with a number of practical suggestions, which have made it easier to resolve disputes arising out of the increased trade between both nations. Now that's just one example of the process. sense by which lawyers and judges of two countries can look for ways to coordinate their traditional procedures. In this example, they met, they talked about similarities and differences in their to legal systems, and they look for ways to accommodate. I think it shows how useful it can be to study and compare the laws of other countries as our international ties of Rome, the need for international legal education, and a heightened international awareness has grown with it. I've highlighted just a few reasons why this is so because it is necessary to facilitate successful multi level cooperation. Because the need is growing for lawyers to serve clients abroad, because of the benefit from borrowing new ideas or domestic institutions from those abroad and because it will enhance cross border operation. Each reason may have different force for each of us, depending upon our own niche in the legal world. Certainly practicing lawyers must broaden their knowledge of foreign law just to serve their clients better. Judges must be burst and other legal systems to do justice between the parties before them. But the long term considerations I think, are the most important. The vibrancy of all cultures has stemmed and apart from their dynamism, and ability to adapt over time to change. flexibility. The ability to borrow ideas from other legal systems is what will enable our legal systems to cope with a more integrated world. for 70 years, the UI has worked as an international organization to bring together lawyers from nations around the world who exchange ideas and discussion fundamental principles of law, the ideas that the UI has promoted. And the Congress that is meeting now can serve as an important step in fulfilling the need for international legal education and understanding. And I'm very happy to have had an opportunity to be here tonight and participate in this way. And I wish each and every one of you the best of luck in these continuing efforts. Thank you.