Some Interesting Papers
Posted on January 9, 2014
I want to draw readers’ attention to a few recent papers of interest.
First, John F. Coyle, Assistant Professor of Law at the University of North Carolina School of Law, has published Friendship Treaties ≠ Judgments Treaties, 112 Mich. L. Rev. First Impressions 49 (2013). From the introduction:
It is hornbook law that the United States is not currently a party to any treaty governing the enforcement of foreign judgments. At least, it was hornbook law until 1993. In that year, the U.S. Court of Appeals for the Eleventh Circuit adopted a novel interpretation of a provision in a bilateral treaty of friendship, commerce, and navigation (“FCN treaty”) between the United States and Greece that transformed the treaty into a de facto judgments treaty. Two years later, in 1995, the Third Circuit adopted the same interpretation of an identical clause in the United States-Korea FCN treaty. Each of these courts subsequently reaffirmed its respective interpretation of the provision in question, the Eleventh Circuit in 2006 and the Third Circuit in 2011.
In theory, these decisions could usher in a new era of judgments-recognition law in the United States. Indeed, a number of scholars have cited these decisions to argue that the United States is a party to a handful of treaties relating to the enforcement of foreign judgments. In practice, however, this new era is unlikely to dawn for one simple reason: the treaty interpretations adopted by the Third and Eleventh Circuits are objectively incorrect.
This brief Essay explains how and why the Third and Eleventh Circuits went astray. It first discusses the general goal of the treaty provision at issue. It then explains how the Third and Eleventh Circuits have interpreted this provision. Finally, this Essay shows why this interpretation is irreconcilable with the text of the treaties.
Second, Nancy Hollander and Walker Boyd have published Obtaining Evidence in the United States for Use by The Defense in a Foreign Criminal Proceeding in the November 2013 issue of The Champion, published by the National Association of Criminal Defense Lawyers. The article is a good overview of § 1782 practice, and it’s good to see increased attention to the statute among the criminal bar.
Third, Jordi de la Torre has published The Hague Choice of Court Convention and Federal Power Over State Courts, 45 Geo. J. Int’l L. 219 (2013). Here is the abstract:
This Note addresses some of the constitutional issues that would arise if Congress enacted a statute to implement the Hague Choice of Court Convention. Congress could take such action under its Commerce Power or under its power to implement treaties [ed. well, we’ll see about that last bit …]. Because such a statute would regulate the procedures used by state courts adjudicating state law cases, it raises specific federalism concerns. This Note addresses those concerns and concludes that none of them is a bar to congressional action. State court procedures are not shielded from federal regulation. Even if Congress could not regulate state court procedures directly, however, it could federalize substantive law and then impose its choice of procedures as “part and parcel” of the newly created federal rights or as a necessary measure for its effective vindication.
All three are worth a read!