Last Friday’s symposium in Philadelphia was pretty darn interesting, and I had great fun participating and meeting the other panelists. For obvious reasons I didn’t live blog my own panel, “Recognition in a Corrupt World,” and so I wanted to give a very brief report on my contribution to the discussion.
My talk harkened back to a discussion Doug Cassel and I had in the first Letters Blogatory online symposium. I had suggested then that perhaps it is not good policy to allow judgment debtors to challenge recognition of foreign judgments on grounds that a fraud occurred in the particular proceeding. 1 Perhaps we should only allow systematic challenges to the foreign judiciary. The intuition behind this suggestion is that if the foreign judiciary is systematically adequate—if it provides impartial tribunals and procedures compatible with due process of law—then we should trust it to correct its own errors. If the foreign judiciary is not systematically adequate, then it’s judgment is not entitled to recognition in any case.
At last week’s symposium I fleshed this out a little more by looking at different ways that American courts respect each other’s judgments and asking whether one or another if them is more suited as a model for recognition in the international context.
The two models I considered were, first, full faith and credit for sister-state civil money judgments, and second, review of state court criminal judgments by federal courts in habeas corpus cases. In full faith and credit cases, the basic idea is that court B will enforce the judgment of court A if and only if court A itself would enforce it. So if the judgment debtor could set aside the judgment in court A, then he should be able to make the same argument to court B.
In habeas cases, on the other hand, the federal court is much more deferential to the state court. First, there is a rule of exhaustion. The prisoner must in general first make his claim to the state courts. Second, there is a rule of substantive deference. Even if the state court got the question of federal law wrong, the federal court will not invalidate the sentence unless the state court got the question really wrong. I am not going to detail these two doctrines here—interested readers can take a look at the statute, 28 U.S.C. § 2254, and wade into the decisions.
My suggestion was that there may be reasons to think that the habeas model is a better fit for recognition of foreign judgments than the full faith and credit model. The basic reason is that the political relationships between states of the United States are much different and less fraught than the political relationships between the United States and other states. If a Massachusetts court finds that a New York civil judgment was obtained by fraud and refuses to enforce it, the reaction of all except the parties will be a collective shrug. There almost certainly won’t be a political reaction at all, and after two hundred-plus years of our constitutional order, it’s difficult to imagine one. 2 But as we heard at the Penn symposium from Dan Restrepo, the keynote speaker, US recognition or non-recognition of foreign judgments can still create serious diplomatic problems. Take the Lago Agrio case: the question whether a US court should recognize it is not just a private law question; it has spilled over into the diplomatic relations of the two states, as we see when we consider the USTR’s involvement and when we consider the interim arbitral award purporting to require Ecuador to take steps to suspend the enforceability of its own judgment, or Judge Kaplan’s now-vacated worldwide anti-recognition injunction. And similarly, it seems to me that the particular deference we see in habeas corpus cases stems from real political tensions between state and federal governments.
So I suggest that perhaps the relations between the United States and other states are not yet at the stage where a full faith and credit regime is sensible. Maybe the demands of our foreign policy demands greater deference to foreign states. Now, I disclaim any foreign policy or public international law expertise, so I am interested in hearing from people who do have expertise in those areas.
I want to note a couple of contrary views. The first is the view of my fellow panelist Michael Traynor, who has argued, with Professor Hazard, that the Due Process Clause requires a case-specific fraud exception to a rule of recognition. That’s a strong argument, and it’s one that my argument doesn’t really rebut. If the Due Process Clause really does require a case-specific fraud exception, then that’s the end of the story, notwithstanding what I have to say about what policy would be desirable on other grounds. I would merely point out that if we begin with the assumption that the foreign court in question accords due process to litigants and that it provides a remedy against enforcement of its own judgments if they are procured by fraud, it’s not immediately clear to me that due process should require a US court, rather than the foreign court, to make the decision about whether a fraud occurred. The second contrary view came from Roger Alford, who was one of the symposium participants and who didn’t really buy my view about why it would be more desirable to use the habeas model than to use the full faith and credit model. I think he’s right to question this, and I suppose the motivation for my proposal would have to be spelled out more clearly before I could expect it to persuade. At the moment, this is really just an intuition that I am exploring. Maybe the biggest reason I have to question whether my idea can be right is that it seems to imply that there will be fewer grounds to refuse recognition to foreign country judgments than there are to refuse recognition to sister state judgments. This seems implausible.
- This is, of course, a policy argument, not an argument about what the law is today, as the uniform acts on recognition and enforcement of foreign judgments both permit case-specific claims of fraud. ↩
- There is a modern exception that proves the rule—same-sex marriage, the possibility of which prompted enactment of the Defense of Marriage Act. ↩