He knew it at the time. So they wouldnt sign the brief. They said were not signing it, were not going to defend this. Then they a big fight between departments and who was brought in to mediate, herbert j. Wexler. He was running the war part of the Justice Department was a Master Genius and he wrote a footnote, disowning the army on this issue and he wrote it in words that no one could understand. So he convinced burly to sign the brief and the Justice Departments position, i dont know, you read it and see if you can figure out exactly what it was. In fact, who won the case . The government. 63. Famous case. And who is it who upheld . The government. Black, douglas, frankfurter, the liberals who had, in fact, would sign brown versus board. And they were all on the government side. It was the three dissenters were be roberts, murphy and jackson. And there was 63. I thought for a long time maybe they didnt understand there was so little evidence. Footnote, who reads footnotes. [ laughter ] Arthur Goldberg told me that years ago. He said dont write anything in the footnote if you want anybody to read it. In any case i thought maybe of the oral argument and charlie worski was representing the japaneseamerican Defense League pep said to the judges go read the footnote. That footnote denies that theres any basis to this whatsoever and it can. And it did. So they had read it. What were they thinking . My guess, my guess is they were thinking cicero. And while it was a guess, i later met someone i hadnt gotten this source, he got the source of the conference and he said black walked into this conference and he said, well, somebody has to run this war. Its either us or its roosevelt and we cant and so we better let roosevelt do it. And that was the argument. You read the opinions and you see if you dont think i think it was the argument. I think thats what did it. By the way, the only one that has 100 right was murphy. Hes got every fact right. Thats problem with a historian. I figure ill find out and somebody must have told him. He couldnt have known all this stuff. Burly must have gotten to him. I phoned his law clerk. Gene is 90 years old, hes alive. I hope he still is. I called him. I said, now tell me, tell me. Somebody must have gotten to murphy. How did murphy get all those facts right. You know what he said . I dont remember. [ laughter ] so there we are. Now, thats koramatsu, there we are cicero. Now march on to the korean war and you have the steel seizure case. Very interesting. Because the court there during the midst of the korean war, jackson and the others say to president truman, no, you cannot seize the steel mills even though they were told and truman was told by cabinet officer after cabinet officer if you do not seize the mills there will be a strike, no production and people will be killed in korea, a lot of them as a result. But the court went the other way. So what i do think, my own view after reading this and going through the history of it . They told roosevelt he couldnt do it. Roosevelt had gone too far. Of course he was dead. So it was easier to tell him. Moreover truman wasnt nearly as popular as roosevelt had been. But there you have it. Whatever the reasons, i mean they had gone too far and i think people on that court thought koramatsu was going too far. They thought there had to be a stopping place. But there isnt much in the u. S. Reports. Theres some but not much. Shows a stopping place until you get to steel seizure and read jacksons opinion. Its absolutely fascinating. Its become wellknown because he categorize the different source of Congress Agrees with the president he can do a lot of things, doesnt agree. But the real interest to me at this time is his view about president ial power being exercised and hes very cautious and hes saying, he says look what happened in europe when the president starts, when a president. Im not saying what happened here but he says but, but, but. Stop. Now you come up to more recent cases, four cases out of guantanamo. Four. All brought by the detainees. Everyone of them. The detainee, not necessarily the most popular person in the united states, bin ladens chauffeur was not and is not the most popular person in the united states. Brought against the president or secretary of defense, all four, the detainee wins. Congress has passed a statute first we had to interpret the statute then Congress Passed a statute specifically saying they cant get into court. They said it was unconstitutional. One of the cases says but im not an enemy combatant. You cant hold an enemy combatant if youre in an active war but if they are not an enemy combatant, some said were not. I was a peaceful farmer. The government said why did you have a bazooka. He said every peaceful farmer in afghanistan. See theres an argument there. So were asked to say what do they have to do . They have to go through due process. So in essence we have four detainees who won. But what is the case about . What was cicero replaced by . If i had to choose four or five words it would be Sandra Oconnor who wrote in one of cases and i joined her opinion on this and it was the courts attitude in those cases, it says, she says the constitution does not write a blank check to the president. Not even in time of war. Great. Fine. The only unfortunate thing about that is well what kind of a check does it write . Now youre beginning to see the problem. From our point of view, from the point of the view of judges and lawyers and others. What kind of check does it write . Its not too hard when youre not in the business. But now were in the business. So if we are in the business of answering that will kind of question there has to be answers and now maybe youll see as well why our opinions are not particularly popular. I mean there are some groups who say you never should have gotten into this. You should go back to cicero. You want japanese, 70,000 citizens. The other side said you should have been more thorough, not thorough but more definite. You should have had a few rules here. You should have said if they could use hearsay or not hearsay in these cases. Why was it so vague . Why is it so narrow . I said the reason, the true reason so narrow, because we dont know the answer. Thats the truth it. We dont know. Lots of situations can erupt. Now thats the long wind up. How are we going to find out . Thats not something we alone have to think about. If were in the business of saying when it goes too far these efforts by congress and the president , too narrow Civil Liberties in the name of security, if were in the business, we better know something about what were talking about. And that, i think, requires in part knowing what other countries do and thats why we had an exchange with the brits we spent two days trying to figure out what they were doing. We discussed all this. What does france do . What does israel do . Why . What works . What doesnt work . The lawyers are going to have to find out because the lawyers will have to tell us. And that requires sources of information, they will come in and say to the jjudge theres no good reason for this. Theres no reason. Why are they doing it . Well they have an answer. And somebody has to figure out under what circumstances did the judge look at the answer and when do you do it in camera and when dont you do it in camera. Then why not. Its called less restrictive means and thats up there as a question too. So it will be the lawyers and probably some professors and the judges doing what they usually do trying to go into the subject which they dont know that much about, blaerng it and trying to come out with sensible answers and that will involve knowing what happens abroad as long as terrorism is just not a National Problem and no one just thinks its a National Problem. So thats what i say. A low wind up and a short pitch. But some of it is not such a short pitch. I mean try cases involving international commerce. A case i really liked i thought it was so interesting, explained quite a lot to me, was student from thailand, cornell. He discovers that books, same books, text books, same textbook, same language is on sale in bangkok for a lot less money. So he writes to his parents and says send me a few. They send a lot more than a few. He sold them. The publisher got annoyed. So the publisher brings a case against him. Now whether he can or cannot buy and resell from thailand, theres an answer and its in a statute and the statute, that footnote was compared to nothing to that statute. Its really hard to understand. Thats not my point. My point is i go into my office and theres a stack of briefs like this. And they are from every place in the world. I mean they are from asia. They are from europe. And they are not all about books and i said why are all these lawyers and countries too filing briefs in this case. I mean its sort of an interesting case, but i mean this many briefs and i find the answer down about here. Where one of the briefs says you know copyright today is not just a matter of books or books, films and music. I mean buy an automobile, its filled with software. And a lot of the software in some places is copyrighted. Or go into a shop, any shop you want. And youll see goods and the goods will have labels and the labels will be copyrighted. And it will tell you something, your answer to this case, this student from cornell, we think will affect 2. 3 trillion worth of commerce. Even today thats a lot of money. Thats why they are there. Eventually the student won but that isnt my point. My point is this is all over the place. Can someone in australia, can someone in australia who bought some shares in an Australian Company over an australian exchange, you see, sue under 10 b 5, securities act for a claim that the Australian Company lied about a purchase it made in florida . Of a company . Can they or cant they . I mean we have to decide and we have briefs from the european union, from britain from the netherlands, grrr the governments, we have briefs from lawyers that say the government is wrong, completely opposite. Thats norm swrl. They are from all over the place. And we came to a conclusion that they couldnt sue primarily because it was Justice Scalia who wrote the opinion, i joined it. It interfered with their own efforts to enforce their own antifraud law or antitrust. Thats an old question here but my goodness it comes up with a force, a vitamin distributor in ecuador sue as Company Maker of vitamins in holland and he sues them in new york. Why did he sue in new york . Lets think about that. Maybe the vitamins were so expensive because of the cartel, he was too weak to europe. Thats a possibility. Theres another possibility called trouble damages. Hes in new york. Can he sue or can he again we have briefs from eu explaining to us if we allow this lawsuit they will have real problems with their own antitrust. That comes up in security, antitrust, intellectual property where the only way youll get a sensible answer interpreting a statute of ours which clearly doesnt have the answer is to know how to interpret so that these laws begin to Work Together in harmony to achieve an objective and the word that will be used is the word comedy which is a perfect word which nobody ever knows what it means. Can you find case after case where were trying to get laws of Different Countries to work harmoniously together and that doesnt divide the court. Or treaties. Were interpreting treaties all the time. Time. Lets think of another good example. Shes from paraguay. She came to new york. She came to new york because she wanted to find and did find another man who tortured her brother to death. She also found a statute passed in the 1790s. The alien tort statute. It says that a person, an alien can bring a suit in a court for harm caused by a a violation of the law of nations. What was it about . Pie the ras probably, at least in part. Because the rule used to be in the 1790s you find a pirate and you hang it. By the way, first you hang him upside down and give it to the victims. Who are todays pirates . Torchers. And that produced a whole industry. And then the question was what are the limits. Those are harder than you think to figure out. Its not just who are todays pirates. All complicated statutes are complicated. There are some special things about this. And one of the special things, the law of nations, where do we look . Why is that a problem . Its important to understand one reason why its a problem. Or difficult. Not overcomable, but still raises a special difficulty. And thats what madison said. I like to keep these words in mind when im dealing with something that stems from abroad. I think it helps explain some of the opposition to the attitude im taking. He said that it this constitution unlike europe is a document. It is not a document given by power to liberty. Its a document given by Liberty A Charter of power. Its still at the center. That power may produce a charter of liberty. They may add up to the same place we do but its not the same theory. What this says is residue of power where the power comes from is the people. And this is a document that if they dont give you the power, you dont have it. You see . A difference. Now it think of people being taught that for 200 years in this country not always practicing it, but nonetheless. And sudden ly it becomes cleare why theres an emotional reaction. We elect the congress. The judges we dont elect them but at least they are american judges. But who appointed those people . Now that is a special problem that we have. Doesnt mean they dont have the power. But it does mean that you have to explain it pretty clearly. Why and how they got it. Or start thinking about what are e we going to do it . What about a par tide. Maybe so and people brought cases against Companies Based on that theory and the South African government filed brief saying we dont want judges in the united states. Getting involved in this, we have our own system. Its called the truth in reconciliation commission. All that american judges are going to do is start getting everything mixed up. Let us deal with our own problem. So how is it the american courts will treat that. Do whatever the state Department Says . Do we work out a system . Now were beginning to see special problems and if its areas like this, remember, theres no Supreme Court of the world. Other countries may have similar statutes. We better be able to have a system however we interpret similar words here that will work out overall. I mean the example to use is e we always read in the paper whether its true or not. Every single foreign country. I dont know why, but we cant have a system where they are going to be sued. But the problem is this. To have a final rule on such matters. And all those kinds of difficulties and more are involved in those 10 or 15 or 20 words in that alien tort statute and its difficult and its been to this court at least twice. But thats human rights, a little example of it. Its right there. Why did i say treaties . I started out with treaties because i began to think of treaties as always being subject matter for a court. Of course, but suddenly but cases over two years that involve a single treaty but you know something about abducting children in the law. They are called domestic relations judges in the states. I know some of them. Its a really hard job. A very difficult job. And one of them up in cambridge told me he always starts when he has a fighting couple before him i h said i hope you can work this out. Ill decide it and whatever i decide is going to be worse than what youd work out. Its very hard. And who knows even less about it . Federal judges know nothing about this subject. We stay far away from domestic relations. State matters, so why in heavens name are we starting to interpret a treaty on child abducti abduction . Because its a treaty. And well get into that. My goodness there are groups. One group is very much against child abduction. Nobody is for it, but before just wait. It has to be interpreted a certain way or too much child abduction. People who feel just as strongly about abuse of women. Because very often its motivated by abuse. So they have to go to different courts and different parts of the wofrld making similar arguments to different courts and asking us. We have two cases. Why are we into this business. Why is it in the troetty . Because marriage is more and more a question that crosses national boundaries. Nobody is going to change that. Its just going to get more. There are treaties. Nobody disagrees with the problem sigs that you have to look to foreign law. You should look to foreign law. You must look to what foreign courts say. Everyone agrees with that. All nine of us. We said that. And well, okay. Is that something that comes up oft often . The professor had his students look to see if he had an answer to this question. How Many Organizations are there in the world . Lets do that loosely. Lets say created by treaty or by executive order or created by something. Which have the power to have a bureaucracy and that makes rules. Those rules have this characteristic. They bind individuals or companies for more than one nation. So you can think of the World Trade Organization or parts of the united nations. But now you want it to count up how Many Organizations are how many do you think there are . How many think theres more than 100 . Nobody thinks they are more than 100. More than 1,000 . There are more than 2,000. We belong to 800 or 900 of them. Theres a blue thin whale commission. Students will know in two seconds. Whats the organization that affects you every single day. Icon is the organization that regulates the interpret. What is icon. Its a company in los angeles or sort of a company. It has some kind of status there. They are making rules that affect everybody. Or go to the ball who meets. The banks meet in ball. So do our regulators. And they go to ball and they make they sit discuss and agree what to do. Then the regulators come back to their countries and promulgate the rules giving everybody a chance to comment on what they already decided. That is an overstatement. But nonetheless, thats going on in a lot of places. And gradually these questions are coming up to the court. Gradually. Ill give you an example of a big question thats decided all over europe and we havent had it