A Becoming Modesty: U.S. Litigation in the Mirror of International Law

Abstract

I address two parallel and paradoxical trends involving U.S. litigation and international law. I describe how U.S. courts have sought to widen their influence over the provision of succor to foreign victims of cruelty and injustice. I argue that a desire to increase the capacity of U.S. judges to instruct the world explains, at least in part, these developments. I then review how international arbitral bodies have had new opportunities to scrutinize the fairness and efficacy of civil litigation in the United States, and have tended to find our civil process wanting.

These cases also implicate two other issues. Many have questioned the wisdom of international commitments that submit U.S. civil practice to the scrutiny of independent arbiters. Doubts also exist about the willingness of U.S. courts to enforce arbitration awards that compensate for perceived failures in U.S. litigation. How one addresses these issues turns largely on how one regards the tension between the ambition of U.S. courts and the critique embedded in the arbitration proceedings.

I proceed from these descriptive tasks to the development of alternative idealizations of judicial function. I offer two stylized accounts of what a civil litigation process might set out to do. What I will call the expressive function involves a deliberative process that engages more than the parties to the suit. What I will call the distributive function involves a contest among the parties before the court over the assignment of discrete interests, duties, powers, immunities and rights. I then explore the different implications of these functions for the judiciary's posture toward the Executive and Congress. I argue that the expressive function does not require a distinction between the judiciary and other branches of government, as the engagement in deliberative discourse has only an accidental connection to the medium of the lawsuit. The distributive function, by contrast, suggests a distinct role for the judiciary and thus invites consideration of how the operation of the political branches might restrict the scope of judicial activity.