Michaels looks at the impact of globalization on the role of domestic courts in his seminar, which he taught at Princeton University as visiting professor in the Program in Law and Public Affairs, and, during the fall 2010 semester, at the University of Pennsylvania and the University of Toronto law schools. He begins by laying a theoretical foundation for globalization and dédoublement fonctionnel, a theory which posits that courts have a dual function as domestic courts when they deal with domestic rules, and as international courts when they deal with international law. He then introduces students to different areas where this theory, and others, might lead courts to “solutions and conclusions other than the ones typically found in those areas of law,” he says. “We combine actual doctrinal analysis with an analysis of the paradigms within which those doctrinal analyses take place, whether it’s tied to a state paradigm — a strongly sovereigntist position towards the law — or whether it takes a globalization perspective.”
The seminar evolves from his research on the function of domestic courts as world courts conducted during his year at Princeton.
Michaels offers a straightforward hypothesis underlying his inquiry. Globalization, he explains, creates certain problems that are intrinsically global, such as those raised by international human rights, global cartels, global securities fraud, and Internet defamation, to name just a few. Given the paucity of global courts, however, the ensuing “functional gap” is being filled by domestic courts.
“The domestic courts are domestic in an institutional sense, but are global courts in a functional sense as a result of dealing with these global problems,” he says. “The first question is, why? Why is this being done by domestic courts rather than institutionally global courts and why has it been done predominantly by U.S. courts? And it raises a framework within which we can assess the legitimacy of these actions.”
U.S. courts, he observes, are often accused of practicing hegemonialism and extraterritorialism when they take up human rights cases. “But if we say that they are functionally world courts, extraterritoriality cannot be a problem. The question is no longer whether the issues at stake are within the United States or not but, rather, that they affect the world in its entirety and therefore must be dealt with in a global sense.”
An example can be found in the Supreme Court’s 2004 ruling in F. Hoffman-La Roche Ltd. et al v. Empagran S. A. et al, which considered the extraterritorial application of U.S. antitrust law, he says. At issue was an instance of global price-fixing by manufacturers of certain generic vitamin products; because the products were not protected by intellectual property laws, consumers could purchase them in the cheapest market, setting up a situation of global price fixing, as opposed to multiple price-fixing schemes for individual countries. Michaels says the Court erred in barring purchasers in foreign markets from invoking U.S. antitrust law for their claims of damages.
“The Supreme Court assumed that the foreign markets were independent from the U.S. market, which is a striking and telling move in the decision,” he says. “I think that the Court found that the law dealing with questions of territoriality and extraterritoriality was inadequate for a phenomenon that was effectively global in nature, and rather than adapt the law to the facts, the Court adapted the facts to the law.
“My hope is that my approach can give us a workable framework within which we can then also develop adequate solutions, one of which might be to say that the Court should distinguish between plaintiffs that have their own functioning enforcement mechanisms, such as the European Union, Canada, and Japan, and countries that don’t, such as Ecuador and Ukraine, allowing the claims from the latter, while sending plaintiffs from the former to their home countries. That’s one possible solution.”
Besides his ongoing research on the globalization of domestic courts, Michaels is currently involved in research on legal pluralism, and, jointly with Karen Knop at the University of Toronto and Annelise Riles at Cornell University, a project on conflict of laws as a technique for all areas of normative conflict.