If a foreign government enacts a law that would be unconstitutional if passed in the United States, can a foreign judgment based on that law be enforced in an American court? For example, can an American court enforce an English judgment based on English defamation law, which is more pro-plaintiff than the First Amendment permits American law to be? The same issue was presented by recent litigation involving Yahoo!, where a federal district court considered whether it could enforce a French judgment based on a French law that regulated hate speech more broadly than the First American allows American polities to regulate.
American courts to date uniformly have concluded that enforcing such foreign judgments would be unconstitutional. This Article argues that these courts' analysis is mistaken: While such a foreign judgment may well be un-American insofar as it comes from a non-American polity and reflects political values that diverge from American constitutional law, neither the foreign judgment itself, nor its enforcement by an American court, is unconstitutional. The Article shows that the American courts' analyses are based on a misunderstanding of post-Shelley v. Kraemer jurisprudence. The Article also explains why a legal requirement that foreign judgments be enforced does not qualify as a generally applicable legal rule that would trigger constitutional scrutiny.
The American courts' mistaken constitutional analysis has begotten pernicious consequences. The illusion of unconstitutionality has obscured the fact that whether un-American judgments are to be enforced must be decided on the basis of policy. The courts' constitutional confusion also has hidden the fact that the more political branches of government are best institutionally suited on purely functional grounds to making such value-laden judgments. As a doctrinal matter, the courts' erroneous analysis threatens to wrongly narrow the scope of the President's power to pursue an executive agreement or to negotiate an enforcement treaty with other countries, thereby depriving the President and Congress of powers in respect of foreign affairs that are constitutionally theirs to exercise. Finally, the courts' faulty constitutional conclusion has led to a wholly American-centered analysis that categorically disregards a range of considerations that, on virtually any normative theory, are relevant to deciding whether un-American judgments should be enforced. (A companion piece explores in detail the policy considerations that appropriately determine whether un-American judgments should be enforced, see Should Un-American Foreign Judgments be Enforced?, 88 Minnesota Law Review 783 (2004)).
This is a particularly opportune time to correct the constitutional misperceptions concerning un-American judgments because the United States is in the process of negotiating an international treaty dealing with the enforcement of foreign judgments. It is important that American negotiators not be constrained by illusions of constitutional limitations when they attend to their task of forging a multilateral treaty.
Mark D. Rosen,
Exporting the Constitution,
Available at: https://scholarship.kentlaw.iit.edu/fac_schol/518