The Great Big International Law Market
On "forum shopping", commercial arbitration, and space for democracy
It’s a new term for the Supreme Court of the United States, and US folks aren’t just wondering about the docket this year; they’re also wondering if there will ever be accountability for these lifetime appointees: judges responsible for decisions that deeply impact human thriving, yet who have been exposed this year for a bevy of corrupt financial practices of significant relevance to cases under review.
To this end, a recent Politico survey of 2,000 registered voters suggested a bipartisan consensus of around 75% of voters (81% Democrats, 72% Republicans, 69% Independents) wanting SCOTUS to abide by a formal code of ethics.
But what then? In principle it’s a nice idea, but a code would require consequences, and consequences create their own political battlegrounds. What would happen next, even if a code were implemented? A removal process for transgressors? Gee, I wonder how quickly that too would get gamified by bad-faith political actors.
It’s not that nothing should or can be done about corrupt judicial practices.
Quite the opposite: it’s that we need to take more seriously just how complex judicial affairs always are. Even if we were to write the most impeccable legislation (which we don’t), there will always be room for human beings to misconstrue or ignore key aspects, from platforms that give average citizens little recourse when wronged.
And as much as there’s doom and gloom around the latest court term? These systemic failures have a far deeper history. Indeed, the whole fixation on SCOTUS speaks to a greater dearth of civic education around crucial and rapidly transforming sites of judicial power. That’s why we’re going to talk today about the international law market, with a significant focus on the role of arbitration in our new legal economy, and how the whole attitude involved in such dispute-management undermines effective and democratic recourse for some of the biggest problems in our world.
But to get there, we’re starting with the US, and its more familiar branches of “justice” in action. Specifically, we need to look at why local law creates the sort of gaps that transnational “forum shopping” exists to fill.
Evasive manoeuvres instead of proactive law
Let’s consider Castle Rock v. Gonzales (2005), a US Supreme Court case hung around a man kidnapping his three girls and killing them while their mother pleaded repeatedly with the police to uphold a restraining order against him. After their horrific and preventable deaths, she sought to sue authorities for breach of the Due Process Clause in the Fourteenth Amendment. Here’s how the relevant part of that amendment reads:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The core clause is broadly understood to grant negative rights, rather than positive ones. It’s centrally about the defense of a citizen from government action. While most modern constitutions focus on the construction of positive rights, the older US document is an outlier in its attempt to defend its citizens—at least, on paper. In practice, the culture of a negative-rights constitution has elevated adversarial contest between government and average citizens; citizens rely on the Constitution as defense from the state’s many encroachments on personal freedoms. It’s as if each side has learned the part it’s expected to play, based on the script at hand.
But the complexity in this one case really started in 1994, with the Violence Against Women Act, which offered a positive government obligation to do more to protect people from domestic assault. Its “Full Faith and Credit” provision required every US jurisdiction to recognize and enforce valid protection orders issued in any jurisdiction.
(I know! 1994! Horrifically late in the game.)
This is important because it also represents a binding of state and federal action—and we all know how little many in the US like their territorial peas and potatoes touching.
So here’s where that amendment gets complicated. It was originally written as a negative right, but over time and additive legislation with respect to government obligations, it has taken on the character of a positive right, whenever the “property” that someone is deprived of was something promised by federal law itself.
Thus, the case came before SCOTUS, after being bounced around in lower and en banc (smaller bench) courts. Had Castle Rock essentially committed breach of contract by refusing to make good on the “property” that the state had an obligation to bestow (with full federal backing) on the mother whose three children were murdered by a husband the police did nothing to track down? Did she have a right to sue for loss of property—not of the children, but of the restraining order’s value?
(And does this question feel painfully removed from the actual injustice that transpired on that horrible day? It should. But we’ll get back to that momentarily.)
SCOTUS ruled 7-2 that she did not. In his opinion, Antonin Scalia argued that the police had no property interest in enforcing a state document with the words “You shall use every reasonable means to enforce this restraining order”, because this document and the service it promised was not a “protected entitlement”: merely a benefit, that police traditionally had discretion with respect to bestowing. He argued that the document had no monetary value, and only allowed that its recipient was entitled to initiate statutory processes from the police—not for the police to actually act on such requests. Scalia further argued that the original state ruling on this question had been in error when claiming that it had created a greater entitlement.
The dissent, by Justice John Paul Stevens with Justice Ruth Bader Ginsberg joining, identifies the absolute mess of an opinion forwarded by Scalia and concurred with by David Souter and Stephen Breyer. It notes that a monetary value could absolutely have been placed on this act of protection, as a service that could have been contracted for by a private firm. Stevens also reviewed Colorado case law with respect to police discretion, emphasized that 1980s and 1990s domestic assault legislation was expressly meant to counteract past failures to enforce, and noted the major federal court overstep in Scalia overriding rather than giving preference to state assessments of state law. And of course, it boggles Stevens that “shall” was at all a fuzzy term, with respect to creating a mandate in the original restraining order.
In sum, there was good reason for many legal experts to deem this verdict terrible. Scalia’s argumentation only really makes sense when thinking about the broader legal consequences of a different outcome (i.e., the precedent it would set for the state being liable for any number of other acts of police dereliction of duty). But it was an especially telling failure for two other reasons, too:
First, because Scalia was pitched in the media as the “textualist”, the SCOTUS justice who claimed that one had to start with the text itself and ignore legislative history (but not vague “traditions”, apparently) when assessing the merits of a question.
And yet, there’s no such thing as a perfectly objective reader of any given text. Everything can be weaponized—and Scalia, like many justices come before and after him, was absolutely inclined to start with an outcome in mind and work backward.
One might boggle at the idea of reading “shall” as anything but an emphatic obligation, for example—but textual evasion around that word actually has a tradition in US literature. John Steinbeck famously renegotiated the “shall” in the Bible, around the question of whether Cain had an obligation to control his impulses. Now, Steinbeck got the Hebrew wrong—the word in question is timshol, not timshel—but through East of Eden he nevertheless entered into cultural canon the idea that “shall”, as a Biblical directive, might also be read as “thou mayest”, which leaves open the possibility that “thou mayest not”.
Which is more or less how Scalia also interpreted the word “shall”—though not from any such fancy literary history: just the idea that a restraining order couldn’t seriously be considered a “protected entitlement” if police routinely applied their discretion to other written obligations in the past. If past officers weren’t expected to take the word of the law as a rigid mandate elsewhere, why should they be expected to here?
But also…
Second, because it reduced a very serious miscarriage of justice to property law.
Because the whole case hung on the notion of “property” in the first place, when there are far more profound questions of human welfare that a judicial system could have acted upon instead.
And yes, I know, it’s easy for us to armchair litigate whatever nonsense comes out of our respective courts. (Especially we non-lawyer types, like myself!)
But this choice of legal scope, and how normalized our conversation of “justice” has grown around it, should disturb us.
When the law that shapes our lives is centrally property-based, instead of focused on trespass against the person, we begin our pursuit of justice from a place of inhumanity. We can never arrive at where we want to go, from here.
Below the fold, we’re talking today about transnational law, litigation isolationism, and the rise of commercial arbitration. But mostly, we’re talking about a consequence of our current flawed systems: the gaps they’ve left in moral discourse, by staging the question of justice so narrowly that there isn’t room for a more humanist approach—and so only more property interests have any chance of thriving.
The world of law is changing.
But not, unfortunately, with a more civically empowered outcome in mind.
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