Very fortunate that he is giving us this lecture. He is a man who these know introduction. There is not an introduction that will be complete in the time allotted. He graduated with highest honors from stanford. He then went as a marshall scholar to oxford where he received firstclass honors with a ba degree in philosophy and economics. He went to harvard law school, where he excelled and was articles editor of the log review. He then clerked for Justice Arthur goldberg. He doesnt knowledge that he conjured it to the first draft that he contributed to the first draft of griswold versus connecticut case. For those of you who are not lawyers was the case and recognized the right of marital privacy. After clerking for justice goldberg, he worked for the department of justice and taught at harvard, both in the law school and the Kennedy School of government. He was chief counsel to the Senate Judicial committee. He was nominated by president carter to the first circuit, 90s after carter lost the 1980 election. He has so impressed senators on both sides of the aisle on his work that he was confirmed 8010. He then served for 14 years on the circuit and served in the last four years when he was nominated to replace justice blackmun, and assumed the oath of office in 1994. We are coming up on the 22nd anniversary. If you all please join me in justice brayer. [applause] thank you. Very nice introduction. This is a formidable group. I am talking a little bit about history, but you actually know about history. That told by a historian anyone can make history, but it takes a real genius to write it. [laughter] easy fastto that books arent books arent that the. Easy. That got its way into the hands of a New York Times reviewer. Dont ask me how. Wonderland,alice in when alice emerged in a pool of tears, they have heard this story before. [laughter] why are you writing that, why are you getting that, said alice . That is the driest thing i know. This was before breyer wrote this book. [laughter] it is terribly important that you support these things because it is important that people know something of the history of the court. I am very glad to be here. I am glad to be talking about it and i am glad that you are here listening. What is this book about . Analogy it is a kind of report. Sort of report if you ever read the charterhouse, an important novel, he is on the battlefield at waterloo. Bullets are flying by and forces are running back and forth horses are running back and forth, and the polling is going this way and that way. He says something really important is happening here. I wish i knew what it was. [laughter] and that is what this is about in respect to when i hear words like globalization and interdependence, or a shrinking world, which is a bit cliche. All true, of course, but what is it about . I can do this. I can draw on my own experience over the last 20 years or so. In terms of that experience, here in this court, i is seen a change, and the change is just in the number of cases. It where you have to know something about what is going on abroad in order to decide the case correctly and intelligently. I have seen the number grow. I think they were pretty rare when i came here. Now if you looked it up and said, it is 50 , or 20 15 , or 20 , you would be closer. I will tell you what it is like here. I will tell you about these cases specifically. And i will group them and show you different topics. Examples,e you some and then i will say, what would you like me to do about it and how would you like me to decide the cases . Because they different types of skills and knowledge . Call onse they different types of skills and knowledge. I will give you examples. Some are pretty interesting and some are medium interesting. [laughter] in any case, lets go to a hot topic. That is a wellknown topic about liberties about civil in times of National Security . There is much less in the court u. S. Reports you might think. Jackson said, looking to see what the framers thought about inherentlem, the powers of a president , its, it is like trying is like joseph trying to interpret the dreams of pharaoh. You start looking it up and discover there is not a lot written. Why not . Well, for many, many years, the general view of judges here, as well as judges abroad, when you have First Security needs, like a war. I Real Security problem. And you look at the document, the documents as, this power is primarily the president s, the congress, not the court. What about the Civil Liberties . Sometimes there is a clash. Why is there so little . I think the answer is cicero. He was not one of the founders. [laughter] but they did in fact know about cicero and that attitude prevailed for many, many ears. Many years. Or, the laws when the canons roar, the laws fall silent. In time of war, when the arms are etc. You see the point. Did the court live up to that . Yes. You wont find in many cases during the 1812s. Abraham lincoln, he had a real problem obviously. Maybe lincoln did not get involved in Civil Liberties. Tens of thousands of people were arrested. Secretary of state holding the British Ambassador saying, you see this bell here, i cant bell i could push this and have anyone i wanted to prison. Twice and have any person in indiana thrown into prison. Does the queen of england have such power . There were a lot of Civil Liberties problems. The court got involved after the war was over. That is different. Jackson thought it was a good idea. He said, let them do what they want in the army, and we will come later and say what they did was wrong. Nonetheless, you look and see what happened to Civil Liberties in the civil war. The court does not intervene at all. Lets go to world war i and there are many books written. Is famouse say there speech being interfered with. The court stayed away from it until after the war. World war ii, we know that. I grew up in San Francisco and we would drive down the peninsula. It would go and that is where they held the japanese in world war ii. The note of approval was not in her voice. I mean 70,000 american citizens of japanese origin were ordered to report to the racetrack in santa anita if they lived in los angeles, and 70,000 american citizens were just moved. Why . Because general deal with said he better general dewitt may invade. They were citizens. They were told to report. And they moved them. What happened to the germans and italians it did not happen to the germans and italians in england or other places that also had problems. But it is what happened to the japanese here. They went to the camps against their real will. Said was one person, that it is ridiculous, i am an american citizen, and i dont think they should be doing this. If they want to look into my background, fine, but they dont have to send me to a camp. I met that lawyer actually. He was 80 years old at that time. A very feisty guy. He was having a drink with her neighbor. Daughter of a man called ernie. He used to play poker with my father and head of the aclu in San Francisco. He represent him in the status and in the famous case. The aclu would not sign the brief. They did not get back into it. That spring of 1942 was when it was signed. That was after pearl harbor. Who was supporting it, warren earl warren. Camps. Y went to the he said, we are going to win this. The case finally got to the court in 1944. In 1944, there was no risk of invasion. There was not a problem but submarines off the shores of california. They were pretty certain they were going to win. Before the case went to the court, when the brief was in the justice department, to lawyers, two lawyers got a hold of it written by a commander in the navy who was involved with intelligence. They got suspicious. The government was saying that if rents but defense was saying that there was 763 of intercepted communications, messages sent to submarines of sure. Offshore. He called in the fbi that said there was no sabotage. The sabotage took place after they had been moved. The fcc came back and said there beingt one instance of sent out to submarines. Those were privates who did not know how to work the machines. [laughter] mr. Breyer so they said, that is amazing. How did you do this so quickly, they asked . They said they did not do it now. We did it in 1942. And we showed it to the general. He knew it at the time. So they would not find the brief. They said, we are not going to defend this. Then they had a big fight between the two departments. Who was brought into middle rate but herbert j wechsler . In to mediateught but herbert j wessler. On this a footnote issue. He wrote it in words no one could understand. Convinced pettersen Burley Edison burley to sign the brief. Who one for the case, the government. 63. Famous case. Who upheld it . The government. Black, douglas, frankfurter the liberators the liberals who later would sign brown versus board. And they were all on the government side. Was the three dsenters roberts, murphy, and jackson. And they were 63. Theyught for a long time just did not understand there was so little evidence. Footnote, who reads footnote . [laughter] mr. Breyer author goldberg told me that years ago. Anything int write a footnote if you want anybody to read it. In any case, i thought the transcript of the oral argument and charlie for ski and charlie was representing the japanese and said to the judges, go read the footnote. That footnote denies there is any basis to this whatsoever. And it did. So they had read it. What were they thinking . My guess my guess is they were thinking cicero. Guess, hewas a got the source of the conference. He said black walking to this conference, and he said, well, somebody has to run this war. It is either us or roosevelt. And we cant. So we better let roosevelt do it. That was the argument. I think that is what did it. Rightly one who was 100 was murphy. He got every fact right. Somebody must have told him. Burley must have got in to him gotten to him. Jean was 90 years old. I called them. I called him and i said tell me, tell me. How did murphy get all of those facts right . Do you know what he said . I dont remember. [laughter] mr. Breyer so there we are. To hat a score month now, marshall to the korean war and you will have the caesar case. Very interesting. The court there in 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 officer after kevin officer, if you do not seize the mills, there will be People Killed as a result. But the court went the other way. What do i think after reading a lot of this and going through the history of it . They told roosevelt he could not do it. Roosevelt had gone too far. Of course he was dead, so it was easy to tell them. Truman was not nearly as popular as roosevelt had been. There you have it. Far. Had gone too they thought, there has to be a stopping place. There isnt much in the u. S. Report. There is some, but there is not much. They chose a stopping place. Hasjacksons of taken, it become well known because he categorized the different sources. But the real interest to me as his view about president ial power being exercised and he is very cautious. He says, looks what happened look what happened in your what a president starts in europe. But he says but, but, stop. Now you come up to more recent cases. Four cases out of guantanamo, four. All brought by the detainees. Every one of them. Necessarilys not the most popular person in the United States. Is not the chauffeur most popular person in the United States. Brought against the president or the secretary of defense, all four detainee wins. Congress has passed a statute. First we had to interpret the statute. Then Congress Passed the statute saying they cannot get into court. We said it was unconstitutional. One of them says, one of the cases says im not an enemy combatant. You cant hold an enemy combatant in an act of war, some way were not, were peaceful farmers. Iwas a peaceful farmer said one of them. The government said, why did you have a bazooka . He said, every peaceful farmer in afghanistan theres an argument there. They have to go to the rudiments of due process. Presentn opportunity to argument. In essence we have four detainees who won. What is the case about . What was cicero replaced by . To choose for five words, it would be sandra joinedrs who wrote, i her opinion on this and i think that is the courts attitude in most cases and probably will be, theys, she say,s, constitution does not write a blank check to the president , not even entitled war. Not even in time of war. The only unfortunate thing about that is what kind of check does it right . Does it write . Now you are beginning to see the problem from our point of view and the point of view from the judges, the lawyers and others, itat kind of check does write . It is not too hard when you are not in the business. We are in the business of answering that kind of question, and there has to be answers. Maybe well see how our opinions are not particular popular. There are some groups who said you should never have gotten into this. You should be back at cicero. I said, really, you want the japanese, 70,000 american citizens . The other side says, you should thorough, but more definite. You should have had a few rules. You shouldve said whether they could use hearsay or not use hearsay in these cases. Why was it so vague, so narrow . The reason the true reason, because we do not know thats the truth of it. We dont know. Lots of situations can erupt. Whats the pitch . How are we going to find out . That is not something we alone have to find out. If we are in the business all the same when it goes too far, these efforts by congress and the president to narrow Civil Liberties in the name of haturity, if were in t business, we had better know something about what we are talking about. And that, i think, requires an part knowing what other countries do. And that is why she took us two, we had an exchange with the brits where we spent two days trying to figure out what they were doing. We discussed all this. What does france or israel do . And what works and what doesnt . The lawyers are going to have to find out because the lawyers are going to have to tell us. That requires sources of information. They will say to the judge, judge, there is no good reason for this. There is no reason. Why are they doing it . They will have an answer, you know. Somebody is going to have to figure out under what circumstances does the judge look at the answer and when do you do it en camera. Then they will say, why not do it the other way, the less restrictive means . And that will be up there is 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 a subject, about which major june not know that much about, learning about and trying to come out with a sensible answer. That will involve learning what happens abroad, aslong as terrorism is not just a national problem. A long wind up and a short pitch. But some of it is not such a short pitch. Try cases involving international commerce. A case i really like, i thought it was so interesting, it explained quite a lot to me, was a student from thailand, cornell, he discovers that, um, books, same books, textbooks, same textbooks, same language is on sale in bangkok for a lot less money. He price to his parents and says send me a few. They send a lot more than a few. He sold them. And the publisher got a little annoyed. So, the publisher brings a case against him. Now, whether he can or cannot gubuy and resell from thailand, there is an answer in the statute. It is really hard to understand. But that is not my point. I go into my office and there is a stack of briefs like this. And they are from every place in the world. They are from asia, they are from europe, and theyre not all about books. Why are all these lawyers and countries, too, filing briefs in this case . It isnt it just encase, but this many briefs . I find the answer down about here where says copyright today is not just a matter of books or films and music. Buy an automobile. It is filled with software. And a lot of the software in some places is copyrighted. Shop,into a shop, any and you will see goods, and the goods will have labels, and the labels will be copyrighted. Well tell you something. Your answer to this case, to thi s student from cornell, we think will affect 2. 3 trillion worth of commerce. Yeah, i mean, even today that is a lot of money. Thats why theyre there. I mean, 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 strain exchange thean australian exchange, 2 securities act, for a claim of the Australian Company lied about a purchase it made in florida of a company. Can they or cant they . We have to decided we have briefs from the European Union, from britain, from the netherlands. We not only have briefs from the governments. We have briefs on lawyers who say it is the opposite. And that is normal. They are from all over the place. We came to a conclusion they could not sue primarily because it was Justice Scalia who wrote the opinion, primarily of the way it would interfere with their own efforts to enfor ce their own antifraud laws or an antitrust. That is an old question, but my goodness, it comes up to the fores. A vitamin distributor in ecuador ofs a company in, maker vitamins in holland. He susan in n sues him in new york . Why did he sue them in new york . There is a possibility called trouble damages. Anyway, hes in new york and he wants to sue . Can he or cant he . Again we have the briefs from the e. U. Explaining that they will have problems with their own antitrust laws. T comes up in intellectual property were the only way you will get a sensible answer interpreting a sense of loss is to know how to lawspret those these begin to Work Together in harmony to achieve an objective. The word we use is comity. You can find case after case were were trying to get laws of Different Countries to work harmoniously together. And that does not apply treaties. We are interpreting treaties all the t