In an earlier article I demonstrated that American courts are not constitutionally precluded from enforcing foreign judgments based on foreign laws that the Constitution prevents American governments from enacting. (Exporting the Constitution, 53 Emory L. J. 171 (2004)). Consider, for instance, an English defamation judgment based on English law, which is more pro-plaintiff than the First Amendment permits American law to be. I showed that although the English judgment may well be un-American insofar as it come from a non-American polity and reflects political values that are at variance with American constitutional law, neither the judgment itself nor its enforcement by an American court is unconstitutional.
This Article addresses the question of whether such un-American foreign judgments should be enforced as a matter of policy. By comparing the different analyses that result from game theoretic and Rawlsian approaches to foreign relations, the Article shows that determining whether un-American judgments should be enforced invariably requires a tradeoff among competing interests that is an inherently subjective process informed by the decisionmaker's pre-legal commitments. Notwithstanding the fundamental differences between game theoretic and Rawlsian approaches, both agree that un-American foreign judgments should be enforced under certain conditions. This common conclusion highlights the practical costs of American courts' mistaken conclusion that un-American judgments categorically cannot be enforced as a matter of constitutional law.
The game theoretic and Rawlsian analyses also have important institutional implications. Both suggest that the political branches of government are better suited than courts to formulate a policy regarding the enforcement of un-American judgments. Game theory and Rawlsian analysis also support the conclusion that international treaties and executive agreements are particularly promising vehicles for generating rules of enforcement.
Although the Article does not champion any one of the competing plausible normative approaches that could be taken to foreign relations, the Article's identification of all the interests that are implicated by the enforcement of un-American judgments enables informed tradeoffs. In the process, the Article shows that many of the standard policy objections to enforcing un-American foreign judgments fall away upon careful analysis.
Mark D. Rosen,
Should "Un-American" Foreign Judgments Be Enforced?,
Minn. L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/fac_schol/524