Illiberal Law in American Courts
60 Pages Posted: 30 Jul 2019 Last revised: 1 Sep 2020
Date Written: July 24, 2019
American courts are at times required to interpret the laws of authoritarian countries. Though such cases are increasingly common, they remain--even today--a poorly understood feature of modern adjudication. This Article seeks to fill that gap: first by describing the scope and scale of American judicial engagement with authoritarian legal systems, second by spelling out the interpretive challenges posed by authoritarian laws, and third by building out a framework and vocabulary for analyzing judicial responses to these challenges.
The laws of authoritarian countries raise novel questions of legal construction. Such questions stem from a gap, mostly real but sometimes imagined, between our own local assumptions about law and certain “nonconforming” features of authoritarianism: sham laws, unwritten laws, party laws, politicized courts, and bifurcated legal systems. Judges have responded to these challenges in familiar ways. Some methods have been more formalist, stressing strict correspondences. Others have been more functionalist in embracing jurisprudential difference. The optimal approach may be one in which judges tailor method to context, balancing an open-minded pluralism against minimal but irreducible principles of legality.
Keywords: foreign law, comparative law, conflict of law, authoritarianism, Chinese law, civil procedure, courts
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