Judging foreign states.

• Author: Clopton, Zachary D.

ABSTRACT

Famed foreign relations law principles, including the act of state doctrine, the public law taboo, and Zschernig's foreign affairs preemption, rely on the notion that U.S. courts should not sit in judgment on foreign states. Judges in these cases, as well as scholars writing in the area, frequently suggest that U.S. courts should sit out of important disputes due to considerations of sovereign equality and international comity. Yet, in less attention-grabbing cases, U.S. courts routinely sit in judgment on foreign judgments, laws, legal systems, and interests, sometimes concluding that they do meet U.S. standards. The first goal of this project, therefore, is to identify and catalog those circumstances in which U.S. courts sit in judgment on foreign states. This extensive catalog should cast doubt on unsystematic objections to sitting in judgment: Were we to accept that sitting in judgment was per se impermissible, all sorts of current doctrines would need to be revisited. Such a categorical rule is not only radical, but also unjustified. The doctrines in which courts sit in judgment are routine and unremarkable; they protect important institutional and individual concerns; and they have not sparked international incident. Nor is there a coherent distinction between the doctrines that call for courts to sit in judgment and those that do not.

Identifying these issues does not determine a better approach, and recent scholarship on these and related cases have proposed changes to U.S. law that turn on external considerations such as foreign interests or international comity. But this literature, in my view, risks focusing too much on the transnational aspects of these cases to the exclusion of domestic institutional concerns. As a potential corrective, this Article imagines sitting-in-judgment doctrine that is responsive to those structural factors that govern institutional arrangements within the U.S. system. Applying the tools of comparative institutional analysis, cases could be divided into those bilateral, legal, and constrained adjudications for which the common-law courts were designed, versus those polycentric, systemic, political inquiries best left to the political branches. Federalism, with implications for both authority and capacity, would suggest further division of responsibilities among relevant institutions. And individual-rights considerations would offer guidance to courts about how to sit in judgment when called upon to do so. This analysis demonstrates not only that there is no per se reason that U.S. institutions should avoid sitting in judgment on foreign state acts, but also that current law may not be allocating responsibility for sitting in judgment consistent with domestic institutional considerations.

TABLE OF CONTENTS I. INTRODUCTION II. THE STATE OF THE LAW A. Refusing to Sit in Judgment B. Sitting in Judgment 1. Foreign States, Instrumentalities, and Officials 2. Foreign Judgments 3. Foreign Laws and Acts 4. Foreign Legal Systems 5. Foreign Interests C. Review III. STRUCTURAL APPROACH TO FOREIGN ACTS A. Separation of Powers: Institutional Authority B. Separation of Powers: Institutional Capacity C. Federalism D. Judicial Approaches IV. APPLICATIONS A. Judgments, Laws, Systems, and Interests B. Acts of State, Public Laws, and Preemption V. CONCLUSION "To pass upon the provisions for the public order of another state is, or at any rate should be, beyond the powers of a court...

--Judge Learned Hand (1)

1. INTRODUCTION

   In a seemingly unremarkable 10-page opinion, the Eleventh Circuit in May 2015 affirmed the dismissal of a human rights lawsuit filed against various Venezuelan entities in part because the act of state doctrine bars U.S. courts from sitting in judgment of a foreign state. (2) Yet during the period between the district court's dismissal and the court of appeal's affirmance, district courts within the Eleventh Circuit issued more than forty written opinions on forum non conveniens motions, (3) which canonically require the court to assess the adequacy of a foreign judicial system. (4)

   In March 2014, the Second Circuit refused to turn over $6.8 million owed to the government of Brazil pursuant to a Brazilian penal judgment because the court wanted to avoid passing upon the public law of another state. (5) Yet the same court ruled that Namibia's United Nations mission may be sued in tort based on its alleged failure to comply with the New York City building code. (6) More dramatically, the same court also affirmed a district court judgment allowing a suit to proceed because "if the plaintiffs returned to Iran to prosecute this claim, they would probably be shot." (7)

   In February 2014, the District of Maryland dismissed Chinese dissidents' lawsuit against an American corporation and its officers for complicity in China's surveillance programs in part because the suit would have required the court to sit in judgment on the acts of a foreign government. (8) Yet only a few weeks before defendants filed their motion to dismiss, (9) the same district court stayed enforcement of a Nigerian judgment to permit a defendant to proffer evidence that the judgment was obtained by fraud, the cause of action was repugnant to Maryland's public policy, and the Nigerian legal system failed to provide impartial tribunals or procedures compatible with due process. (10)

   These sets of cases are not isolated incidents. On the one hand, famed foreign-relations law principles including the act of state doctrine, (11) the public law taboo, (12) and Zschernig's foreign affairs preemption (13) rely on the notion that U.S. courts should not sit in judgment on foreign states. Judges in these cases, as well as scholars writing in the area, (14) frequently suggest that U.S. courts should sit out of important disputes due to considerations of sovereign equality and international comity. (15) Yet on the other hand, in less attention-grabbing cases, U.S. courts routinely sit in judgment on foreign judgments, laws, legal systems, and interests, sometimes concluding that they do meet U.S. standards. (16)

   The first goal of this project is to identify and catalog those circumstances in which U.S. courts sit in judgment on foreign states. This extensive catalog should cast doubt on unsystematic objections to sitting in judgment: Were we to accept that sitting in judgment was per se impermissible, all sorts of current doctrines would need to be revisited. Such a categorical rule is not only radical but also unjustified--the doctrines in which courts sit in judgment are routine and unremarkable, they protect important domestic and individual concerns, and they have not sparked international incident. Nor is there a coherent distinction between the doctrines that call for courts to sit in judgment and those that do not.

   Having identified these issues with existing law, this Article pivots to the normative questions relating to sitting in judgment. In addition to the occasional treatment of one issue or another, (17) there has been recent interest in sitting-in-judgment and related cases by scholars of transnational litigation. (18) But that literature, in my view, risks focusing too much on the transnational aspects of these cases to the exclusion of domestic institutional concerns. As a potential corrective, this Article proposes a thought experiment: What if we crafted sitting-in-judgment doctrine by reference to those structural factors that govern institutional arrangements within the U.S. system? Comparative institutional analysis would divide cases into those bilateral, legal, and constrained adjudications for which the common-law courts were designed, versus those polycentric, systemic, political inquiries best left to the political branches. Considerations of institutional authority would buttress these divisions as well. Federalism, with implications for both authority and capacity, could suggest further divisions of institutional responsibility. And individual rights would factor into the work of courts on these cases (and others). Overall, this structural approach suggests that U.S. courts may be sitting in judgment too much and too little: some of the systemic evaluations could be handed over to the political branches, but legal rules like the act of state doctrine and the public law taboo may be unnecessarily timid in their approach to transnational litigation.

   In this way, this Article is part of a larger project of anti-exceptionalism in transnational litigation. (19) Although certainly not alone, in previous work I have argued that special treatment need not be accorded to class actions involving foreign plaintiffs (20) and that standard tools of statutory interpretation are sufficient in themselves to resolve international ambiguities in statutes. (21) More generally, this project suggests that we should be cautious about creating international-specific solutions unnecessarily while, at the same time, refocusing on those circumstances for which international issues (and in particular international law) call for exceptional treatment. (22)

   This Article proceeds as follows. Part II addresses current law: those situations in which U.S. courts avoid sitting in judgment on foreign states, and the myriad situations in which sitting in judgment is an integral part of existing doctrine. Part II concludes by showing that existing justifications do not explain current doctrine descriptively or normatively. Part III hypothesizes a structural approach to sitting in judgment that accounts for the separation of powers, federalism, and individual rights. Part IV then demonstrates how these lessons would be applied to the doctrines previously described. This thought experiment demonstrates that there is no per se reason that U.S. institutions should avoid sitting in judgment on foreign state acts, but also that current law may not be allocating responsibility for sitting in judgment...