Abstract

http://ssrn.com/abstract=2392019
 


 



The Penal and Revenue Rules, State Law, and Federal Preemption


William S. Dodge


University of California Hastings College of the Law

May 19, 2014

UC Hastings Research Paper No. 86

Abstract:     
Under two longstanding rules, U.S. courts will not enforce the penal and revenue laws of foreign nations, nor the judgments of foreign courts based upon such laws. Both the penal and revenue rules are rules of common law. But are they rules of state common law or federal common law? Some federal courts have held that the revenue rule is federal common law and preempts inconsistent state law. This essay argues, to the contrary, that the penal and revenue rules — like other rules concerning the conflict of laws and the enforcement of foreign judgments — are rules of state law. Building on Justice Harlan’s concurrence in Zschernig v. Miller, I offer a narrower theory of preemption based on clear federal policies expressed in U.S. treaties. Under this theory, States would be precluded from enforcing foreign tax claims, for example, but could recognize foreign convictions as bars to subsequent prosecutions for the same offense, as some state double-jeopardy statutes have done.

Number of Pages in PDF File: 30

Keywords: judgments, conflicts, revenue rule, federal common law, foreign affairs, preemption

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Date posted: February 8, 2014 ; Last revised: May 28, 2014

Suggested Citation

Dodge, William S., The Penal and Revenue Rules, State Law, and Federal Preemption (May 19, 2014). UC Hastings Research Paper No. 86. Available at SSRN: http://ssrn.com/abstract=2392019 or http://dx.doi.org/10.2139/ssrn.2392019

Contact Information

William S. Dodge (Contact Author)
University of California Hastings College of the Law ( email )
200 McAllister Street
San Francisco, CA 94102
United States
415-565-4830 (Phone)
415-565-4865 (Fax)

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