Breaking the Public Law Taboo

Abstract

This article discusses the history of, and reasons for, the "public law taboo" - those rules that prohibit courts from enforcing foreign criminal, tax, antitrust, and securities laws and judgments. It argues that nations should break the public law taboo because cooperation in the enforcement of foreign public law would be mutual beneficial. For governmental claims, the political branches should provide for the reciprocal enforcement of foreign public law through treaties, and courts should not enforce foreign public law in suits by governments in the absence of such treaties because courts are institutionally incapable of ensuring reciprocity. When the plaintiff is a private party, however, fairness requires that courts enforce foreign public law for the same reasons they enforce foreign private law.

JEL Classification: K4