Judicial Foreign Policy-Making in International Civil Litigation: Ending the Charade of Separation of Powers

Abstract

This article argues that, although separation of the powers doctrine is some of the best wisdom the United States professes to offer the international democratic revolution of the late twentieth century, in international civil litigation - the domestic judicial arena closest to international legal development - separation of powers fails fundamentally as a description of the relationship of the judicial and the "political" branches. The article asserts that in international cases United States courts adjudicate the foreign relations of the United States frequently, aggressively, and importantly.

The article explores the areas of sovereign immunity, the act of state doctrine, and the "interest balancing" areas of forum non-conveniens and extraterritorial jurisdiction. It finds a body of case law and statutory authority that purports to keep the courts out of foreign policy, while injecting foreign policy judgments through a refined set of intellectual manipulations, and it discerns a remarkable and intriguing refusal of U.S. jurisprudence to acknowledge the courts' involvement in foreign policy-making.

Keywords: separation of powers, foreign policy, international civil litigation, sovereign immunity, act of state doctrine, forum non conveniens, extraterritorial jurisdiction