Document Type

Working Paper

Publication Date

5-1-2007

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Public Choice & Political Economy eJournals; Law School Research Papers - Legal Studies; Litigation, Procedure & Dispute Resolution eJournals; Law & Society eJournals; International Law & Trade eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; ERN Subject Matter eJournals; Public International Law eJournals

Abstract

The Supreme Courts recent reliance on foreign precedent to interpret the Constitution sparked a firestorm of criticism and spawned a rich debate regarding the extent to which US courts should defer to foreign law when developing US 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 judgements obtained abroadCourts reviewing foreign judgements to determine whether they are worthy of recognition have created an international due process analysis The analysis requires courts to pass judgement on the overall judicial and political systems of the countries from which the judgements originated and to determine whether the systems as a whole are fundamentally fair Remarkably courts ignore the individual proceedings that resulted in the judgement and refuse to determine whether the foreign courts afforded the individual litigants due process relying instead on political evidence and judges own personal preceptions of the foreign countries Courts have gone so far as to label civilized and uncivilized Under this analysis courts will enforce judgements from civilized nations that violate US constitutional norms and refuse to enforce judgements 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 reenvisions an international due process analysis that would require courts to assess according to American notions of due process the particular foreign proceedings in which judgements sought to be recognized and enforced were rendered

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