Political judging: when due process goes international.

• Author: Carodine, Montre D.

ABSTRACT

The Supreme Court's recent reliance on foreign precedent to interpret the Constitution sparked a firestorm of criticism and spawned a rich debate regarding the extent to which U.S. courts should defer to foreign law when developing U.S. constitutional norms. This Article looks at a subset of the issue of deference to foreign law and international influences in judicial decision making: the extent to which our courts should apply American notions of due process in determining whether to recognize and enforce judgments obtained abroad.

Courts reviewing foreign judgments to determine whether they are worthy of recognition have created an "international due process" analysis. The analysis requires courts to pass judgment on the overall judicial and political systems of the countries from which the judgments originated and to determine whether the systems as a whole are fundamentally fair. Remarkably, courts ignore the individual proceedings that resulted in the judgment and refuse to determine whether the foreign courts afforded the individual litigants due process, relying instead on political "evidence" and judges' own personal perceptions of the foreign countries. Courts have gone so far as to label countries "civilized" and "uncivilized." Under this analysis, courts will enforce judgments from "civilized" nations that violate U.S. constitutional norms and refuse to enforce judgments from "uncivilized" countries even if the foreign countries afforded the litigants due process. This Article argues that the international due process analysis violates the separation of powers because it requires courts to make foreign policy. This Article also re-envisions an international due process analysis that would require courts to assess--according to American notions of due process--the particular foreign proceedings in which judgments sought to be recognized and enforced were rendered.

TABLE OF CONTENTS INTRODUCTION I. THE INTERNATIONALIZATION OF DUE PROCESS A. Foreign Judgment Recognition Generally B. "Bad Country" Cases: Pahlavi and Bridgeway Corp. v. Citibank 1. Bank Melli Iran v. Pahlavi 2. Bridgeway Corp. v. Citibank C. "Good Country" Cases: The Lloyd's Cases 1. The Lloyd's Scandal 2. Society of Lloyd's v. Ashenden II. "NAKED POLITICAL JUDGMENTS": A SEPARATION OF POWERS CRITIQUE OF INTERNATIONAL DUE PROCESS A. State Courts and International Due Process B. The Political Question Doctrine and the Limited Role of the Federal Judiciary in Foreign Affairs 1. Origins of the Doctrine 2. Modern Approach to the Doctrine in Foreign Affairs Cases 3. Textual Support for the Doctrine C. Application of Separation of Powers Principles to the International Due Process Analysis 1. Institutional Competence and Lack of Judicially Manageable Standards a. Highly Subjective Determination b. Retaliation Against Foreign Countries c. Rewarding Foreign Countries 2. Potential To Embarrass III. RESHAPING THE DUE PROCESS ANALYSIS FOR FOREIGN JUDGMENTS A. How Much Process Is Due? B. ALI and NCCUSL Projects and Due Process C. Exporting the Constitution? 1. The Free Speech Cases 2. The Applicability of Shelly v. Kraemer and the Uniqueness of Foreign Judgments 3. Substantive International Due Process CONCLUSION INTRODUCTION

The Supreme Court's reliance in Roper v. Simmons (1) and Lawrence v. Texas (2) on foreign precedent to interpret the Constitution sparked a firestorm of criticism. (3) It spawned a rich debate among scholars regarding the extent to which U.S. courts should defer to foreign law when developing U.S. constitutional norms. (4) But a larger issue is the extent to which globalization, which is increasing at exponential rates, should influence domestic legal principles. Not only are American consumers and businesses becoming more global in their perspectives, but judges are as well. This Article looks at a subset of the issue of deference to foreign law and international influences in judicial decision making: the extent to which courts should apply American notions of due process in determining whether to recognize and enforce judgments obtained abroad.

Blind deference to foreign courts is becoming the norm in the area of foreign judgment recognition. In Society of Lloyd's v. Ashenden, Judge Richard Posner found that foreign judgments from the United Kingdom need not comport with American notions of due process to be enforced in the United States. (5) Instead, Judge Posner held that foreign judgments from the United Kingdom and other "civilized" countries need only comply with a much looser standard:

We'll call this the "international concept of due process" to distinguish it from the complex concept that has emerged from American case law. We note that it is even less demanding than the test the courts use to determine whether to enforce a foreign arbitral award under the New York Convention.... (6) Under Judge Posner's analysis, the fact that a foreign court denied a judgment debtor due process is inconsequential. The only issue is whether, in the court's view, the foreign country, as a general matter, has a fair judicial system. (7) If the court feels that the country has a fair judicial system, it can, in the name of comity, enforce the judgment against the judgment debtor. On the other hand, had the judgment creditor obtained the judgment in a country that the court feels has unjust and "uncivilized" judicial and political systems, the court will completely disregard the judgment. (8) This analysis, under which courts divide judicial systems of the world into the "civilized" and the "uncivilized," is what Judge Posner dubbed international due process.

Judge Posner is not alone in his conclusion that American standards of due process do not apply to foreign judgments. In recent years, courts have ignored the due process mandates of the U.S. Constitution in an effort to promote liberal foreign judgment recognition rules. (9) This Article argues that the international due

process analysis violates the separation of powers because it requires judges to make foreign policy. Moreover, this Article re-envisions an international due process analysis of foreign judgments that considers the particulars of the foreign proceedings that produced the judgment sought to be enforced. This approach is not only more desirable than the current international due process analysis, but it is also constitutionally mandatory under the state action doctrine. (10) U.S. courts are not at liberty to recognize foreign judgments that are unconstitutional.

Part I briefly discusses foreign judgment recognition generally. It then looks at the international due process cases in depth. Specifically, it focuses on cases in which courts have condemned a country's entire judicial and political system and found its judgments unworthy of recognition. In these cases, the courts ignored the individual proceedings from which the judgments originated and refused to determine whether the foreign courts afforded the individual litigants due process. The courts relied instead on political "evidence" and judges' own personal perceptions of the foreign countries. Part I also focuses on Ashenden and other Lloyd's of London cases that are based on the same facts and follow Judge Posner's international due process analysis. In the Lloyd's cases, courts across the country labeled the British judicial system fair as a matter of law despite strong arguments that the British courts denied individual debtors due process in their particular cases. (11)

Part II argues that the international due process analysis violates the separation of powers. It draws on principles underlying the political question doctrine, (12) which is rooted in separation of powers principles. Courts lack the institutional competence to undertake the international due process analysis. Should courts continue to apply this analysis, there will be an increasing potential to embarrass the executive branch in its foreign relations efforts. Though foreign judgment recognition cases are most often decided by federal courts sitting in diversity, this Part specifically addresses the problem with state courts applying the international due process analysis. Like federal courts, state courts cannot make foreign policy. The Supreme Court has struck down a state statute that requires an analysis almost identical to the international due process analysis, finding that it violated the dormant foreign affairs doctrine. (13) This doctrine is also rooted in separation of powers principles.

Part III offers a solution for reshaping the due process review of foreign judgments. Under this solution, courts cannot pass judgment on the judicial and political systems of the countries in which the judgments were rendered. If there are countries whose judgments the executive branch deems unworthy of recognition, then it can compile an official list, much like the terrorist country list it maintains. If, however, the executive branch has not officially stated that a particular country's judgments are not to be recognized, then courts must consider whether the foreign country afforded the litigants due process in the individual foreign proceedings. This Article argues that, under the state action doctrine, courts must assess the individual proceedings, applying American notions of due process. This is the approach that courts have taken when faced with judgments that would violate the First Amendment's free speech guarantees. (14) My solution eliminates the separation of powers problems with the international due process analysis. It also recognizes that courts cannot enforce judgments obtained in violation of due process.

1. THE INTERNATIONALIZATION OF DUE PROCESS

   This Part looks in depth at the international due process cases. The courts in these cases interpreted the due process provisions of the Uniform Foreign Money Judgments Act and the Third Restatement of Foreign Relations, which are identical, as only...