ILLIBERAL LAW IN AMERICAN COURTS.

• Date: 01 May 2020
• Author: Jia, Mark

INTRODUCTION 1686 I. JUDICIAL ENCOUNTERS WITH FOREIGN AUTHORITARIAN LAW 1691 A. Defining Authoritarian Law 1692 B. Global Trends 1694 1. Cross-Country Comparisons 1694 2. Judicial Encounters with Chinese Law 1699 C. Application of Foreign Law 1704 II. THE DISTINCT CHALLENGE OF ILLIBERAL LAW 1706 A. The Modernist Paradigm of Foreign Law 1707 B. Authoritarian Legality 1710 1. The Logic of Authoritarian Legality 1710 2. Departures from "Modernism" 1713 a. "Sham" Laws 1713 b. Hidden "Laws" 1715 c. Political "Courts" 1717 3. Bifurcated Legal Systems 1719 4. A Caveat 1721 C. Antiauthoritarian Bias 1722 III. FORMAL AND FUNCTIONAL APPROACHES TO AUTHORITARIAN LAW 1724 A. Formalism and Functionalism 1725 1. Formalism 1725 2. Functionalism 1726 3. Leading Cases: The Chinese Export Cases 1727 a. The Vitamins Case--A Formalist Approach 1728 b. The Magnesite Case--A Functionalist Approach 1729 c. Comparing the Compulsion Cases 1731 d. Authoritarian Credibility 1732 B. Formal and Functional Approaches Compared 1734 1. On Accuracy 1734 a. Qualifying the Predictive Rule 1736 b. Formalism and Inaccuracy 1738 2. Efficiency and Cost 1740 3. Expressivity and Comity 1741 C. Future Directions 1742 CONCLUSION 1744 INTRODUCTION

American law has long defined itself in relation to authoritarian law. (1) It is custom, almost ritual, for jurists to invoke such law as our opposite. The Fourth Amendment is a "bulwark against police practices... in totalitarian regimes." (2) The writ of habeas corpus separates "our democracy" from "totalitarian governments." (3) The First Amendment must be read in light of "how relentless authoritarian regimes are in their attempts to stifle free speech." (4) To invoke authoritarian legality is to remind us what we are not, and in so doing, keep us moored to who we think we are. (5)

In a more mundane sense, however, the laws of authoritarian nations are who we are--or at least, what we do. Modern doctrines of conflicts and procedure place American judges into frequent contact with the laws of authoritarian countries. Sometimes they must interpret such laws. (6) Other times they must decide whether the foreign legal system is fair. (7) These encounters bring authoritarian laws down to earth, where they are treated not as rhetorical foil but, presumptively, as law, to be interpreted or assessed to the best of a court's ability.

For an unacquainted jurist, such laws can appear at once familiar but strange, accessible yet elusive. Consider one example. Authoritarian legal systems can contain documents that present as "laws" but are not practically enforced. In such systems, there can exist other norms or prescripts that lack the traditional hallmarks of legality but nonetheless bind with the force of law. Where should judges locate law when the rules as written are not the norms that bind? Do they observe formality and interpret a "law," even a constitution, that local courts would not dare apply? Or do they apply other prescripts, even if they are unpublished, unwritten, or in other ways so un-law-like as to offend basic legal sensibilities? Judges are not political scientists, or philosophers, or comparativists. Nor should they be. But in such cases they must arrive at an answer. How have they done so? And how ought they do so going forward?

This Article analyzes the interpretive problems posed by authoritarian laws in American courts. Part I describes the state of authoritarian law adjudication today and in the recent past, cataloging the relevant countries, cases, and doctrines. Part II illustrates how, in theory and in practice, autocratic legal systems can present interpretive challenges distinct from those associated with foreign law generally. Part III identifies two methods, formalism and functionalism, that summarize common judicial approaches to authoritarian law. These methodological choices implicate important tradeoffs between accuracy and efficiency, comity and expressivity, requiring judges to balance competing and at times irreconcilable duties inherent in the judicial role. The Article closes with a few modest suggestions for how judges can better manage such challenges.

The last scholar to address "illiberal" law adjudication did so more than a quarter-century ago. (8) In proposing a "liberal internationalist model of transnational legal relations," (9) Anne-Marie Slaughter discussed why American courts might view the laws of illiberal states as "beyond law": ideological conflict, the "shadow" of military conflict, and "the difficulty of judicial dialogue." (10) If liberal courts applied illiberal law as "l a w," Slaughter feared, they risked "validating it according to liberal principles." (11) Better, she concluded, to avoid applying illiberal laws in certain settings and thereby mark such laws as outside a "zone of legitimate difference." (12)

Slaughter's work is best read in the context of its time. Three years earlier, Francis Fukuyama had asserted that the world was converging towards "the end of history... [,] the universalization of Western liberal democracy as the final form of human government." (13) Writing in a similar tradition, Slaughter envisaged a world in which dense legal linkages connected liberal nations with one another, excluding illiberal nations until they too joined in the "emerging political consensus on basic rights under law." (14) Treating illiberal law as lacking legitimacy was, for Slaughter, a means to promote "progressive change." (15)

The world has changed since the end of the Cold War, and not always in ways liberal internationalists have predicted. While some countries have liberalized, in other places authoritarianism has endured, even strengthened, (16) and liberal democracy has begun to backslide. (17) Democracy export, once a "key organizing principle of U.S. foreign policy," (18) has largely fallen by the wayside. (19) Meanwhile, the economic, political, and cultural linkages between liberal and illiberal countries have only grown. American legal actors are now deeply enmeshed in the structures, institutions, and laws of autocratic countries. (20) Authoritarianism has evolved too. In Russia it has become less ideological. (21) In China it has become in some ways more consultative. (22) We now speak of intermediate regime types, with new labels such as "illiberal democracy" or "competitive authoritarianism" conveying the many colors and hues of modern illiberal governance. (23)

These changes introduce both new complexities and a renewed urgency to the challenges posed by authoritarian laws in U.S. courts. Such cases have become fixtures on the dockets of many district courts, especially in commercial centers. In a recent Term, the Supreme Court grappled with how much deference to accord an interpretation of Chinese law submitted by the Chinese government. (24) "Given the world's many and diverse legal systems," the Court concluded, the appropriate level of deference ought to account for, among other things, "the transparency of the foreign legal system." (25) How should courts regard legal sources from authoritarian nations? How should judges deal with legal systems that appear "modern" in some sectors but "aberrational" in others? Questions such as these remain either unaddressed or undertheorized since Slaughter formulated a version of the problem decades earlier. This Article takes up the inquiry anew, at a time in which the end of history is nowhere in sight.

1. JUDICIAL ENCOUNTERS WITH FOREIGN AUTHORITARIAN LAW

   I begin with a thick account of authoritarian law adjudication, identifying the relevant countries, courts, cases, sources, and doctrines. American judges, I find, have engaged more deeply with foreign illiberal law than many would expect. While this may irk those hostile to foreign law in general, it comports with what scholars of transnational litigation have suggested for some time: globalization has created innumerable touch-points between disparate legal orders, and despite a parochialism in American law, (26) judicial encounters with the laws of autocratic countries are increasingly unavoidable.

   1. Defning Authoritarian Law

      Before turning to description, it may be helpful to specify what I mean and do not mean by "authoritarian law." To start, I do not mean laws that are substantively authoritarian, e.g., those that repress civil and political rights, though such laws are presumably more prevalent in authoritarian countries. Rather, I am interested in all rules that purport to be laws in authoritarian countries. (27)

      What makes a country authoritarian? As I see it, authoritarianism refers to (1) a distinct form of governance (2) defined not merely by the absence of free elections, (3) but by a set of affirmative practices that maintain unfettered rule through undermining institutions and processes that hold ultimate decisionmakers accountable.

      My first proposition--that authoritarianism is a distinct form of governance--may seem obvious. It warrants discussion though because authoritarianism has in other corners of the literature been regarded merely as a residual category, encapsulating all that is not democracy. (28) This view is sensible if one sees authoritarianism as an aberration, which may appeal to scholars of democratic transition. (29) But for students of authoritarianism specifically, the definition leaves something to be desired. For one, it treats authoritarianism as a container concept that includes other regime types to which "authoritarian" would be an ill-fitting label, such as the failed state. (30) It also ignores the ways in which authoritarianism is itself a distinct mode of "organizing political life," with consequences for a number of governance outcomes, (31) including the nature of law and legal institutions.

      For similar reasons, I reject a minimalist definition of authoritarianism as any system that lacks free and competitive elections. (32) A lack of genuine popular contestation for political...