Document Type

Article

Publication Title

DePaul Law Review

Abstract

Two of the three papers on which I have been asked to comment address issues involving the importation of foreign into American law. The third paper raises, with a somewhat more general focus, the coordination of activities between foreign and American legal systems. Professor William Dodge discusses the extent to which the procedures under the North American Free Trade Agreement (NAFTA) may, or should, be used to superintend the (perverse) outcomes of the American legal system. Professor David Golove asks the extent to which treaties entered into by the United States can, or should, be effective as domestic legislation. Professor Paul Stephan then asks the extent to which American courts should pass judgment on the quality of foreign legal systems in the course of resolving legal questions over the coordination of their law with our system. Before commenting briefly on each of these three papers, let me give a short account of my approach to the full range of jurisdictional and procedural problems that deal with the incorporation of civil justice concepts from afar into the American system. The bottom line is this: the structure of these problems countenances modest expectations about our ability to reconcile inconsistent legal commands. The message I take from these three papers is that it is never easy to tidy up the loose ends so as to give full and equal respect to the judgments and traditions of what are, when all is said and done, inconsistent legal systems. This venerable problem of domestic law transfers without missing a beat into an international context responding to the procedural, choice of law, and jurisdictional issues that frequently arise in more muted forms within our own federal system. Loose ends always remain loose. The difficulty here is distinguishable from the usual problem of substantive law, where the implementation of a program takes two steps. The first issue concerns principle and policy. Regardless of the subject matter, the initial step is to envision the ideal set of relationships between the parties. The next step asks how the pursuit of these ideals must be tempered by the institutional realities in which any substantive law is embedded. We dare not assume a zero transaction cost system of enforcement, nor a zero error rate in setting out legal rules. However attractive it may be to regard all serious promises as enforceable, with real estate contracts and guarantees we nonetheless routinely enforce those promises evidenced in writing. While in principle we may think that any person with ordinary competence and intelligence should be allowed to drive an automobile, we nonetheless impose a minimum age requirement of sixteen years for all drivers. Ad hoc determinations are sometimes too expensive to make.

First Page

663

Volume

52

Publication Date

2002

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