Foreign Governments as Plaintiffs in U.S. Courts and the Case Against 'Judicial Imperialism'
65 Pages Posted: 12 Mar 2016
Date Written: 2016
One consequence of the increasingly transnational nature of civil litigation is that U.S. courts must frequently address the interests of foreign sovereigns. These interactions arise primarily in three contexts: when a foreign government is the defendant in a U.S. court; when a claim requires a U.S. court to scrutinize actions taken by a foreign government; and when a U.S. court seeks to apply U.S. law to persons or conduct within a foreign government’s borders. Each of these contexts invokes a narrative in which the engagement of U.S. courts interferes or conflicts with the prerogatives of a foreign sovereign. As a result, we typically consider the foreign relations implications of domestic adjudication within a paradigm that is oriented toward constraining the engagement of U.S. courts in matters involving foreign sovereign interests. What this approach ignores, however, is that foreign sovereigns are also plaintiffs in U.S. courts. A full account of the interactions between U.S. courts and foreign sovereigns must address cases in which foreign governments actively seek to engage U.S. judicial resources.
This article sets out the first systematic analysis of claims filed in U.S. domestic courts by foreign sovereigns, drawing on an examination of almost 300 claims. It establishes a basic typology of such claims, and then uses three case studies to explore and challenge the paradigm outlined above. The final section of the article relies on the results of this examination to analyze developments in one particular context: the extraterritorial application of U.S. law. It argues that the narrative of “judicial imperialism” that has come to frame discussion in that area is neither accurate nor useful.
Keywords: extraterritoriality, revenue rule, RICO, foreign relations, parens patriae
JEL Classification: K20, K30, K40
Suggested Citation: Suggested Citation