Political Judging: When Due Process Goes International
William and Mary Law Review, Vol. 48, p. 1159, 2007
89 Pages Posted: 1 May 2007
The Supreme Court's recent reliance on foreign precedent to interpret the Constitution sparked a firestorm of criticism and spawned a rich debate regarding the extent to which U.S. courts should defer to foreign law when developing U.S. constitutional norms. This article looks at a subset of the issue of deference to foreign law and international influences in judicial decision making: the extent to which our courts should apply American notions of due process in determining whether to recognize and enforce judgements obtained abroad.
Courts reviewing foreign judgements to determine whether they are worthy of recognition have created an international due process analysis. The analysis requires courts to pass judgement on the overall judicial and political systems of the countries from which the judgements originated and to determine whether the systems as a whole are fundamentally fair. Remarkably, courts ignore the individual proceedings that resulted in the judgement and refuse to determine whether the foreign courts afforded the individual litigants due process, relying instead on political evidence and judges' own personal preceptions of the foreign countries. Courts have gone so far as to label civilized and uncivilized. Under this analysis, courts will enforce judgements from civilized nations that violate U.S. constitutional norms and refuse to enforce judgements from uncivilized countries even if the foreign countries afforded the litigants due process. This article argues that the international due process analysis violates the separation of powers because it requires courts to make foreign policy. This article also re-envisions an international due process analysis that would require courts to assess - according to American notions of due process - the particular foreign proceedings in which judgements sought to be recognized and enforced were rendered.
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