Thanks, Ted, for sharing—your paper is very interesting. If, as you suggest, some American courts afford greater deference to foreign judgments than sister-state judgments, then to that extent I think we can expect the trend (noted by Chris Whytock and others) of plaintiffs bringing transnational disputes in foreign forums to continue. However attractive the US is as a merits forum, it strikes me as much more attractive as a place to enforce.

To plug my article once more, I think your view is also consistent with judgment arbitrage occurring with greater frequency, because (1) as you observe, recognition is a relatively low bar and (2) once recognized by an American court, a foreign judgment can be enforced in any other US jurisdiction quite easily.

Thanks, Greg, for the thoughtful reply. This is not directly responsive to your points, but you might be interested in this paper I published last year, which suggests a non-intuitive answer to the question of how, from the point of view of comity, a US court should treat a foreign judgment relative to how it treats a sister-state judgment. You may not find it persuasive, and I’m not really sure that I find it persuasive. I haven’t worked out in my own mind yet whether the point I make there bears on our discussion, but it seems to me that it may. And that, by the way, is the beauty of blogging—I don’t need to have a fully fleshed-out thesis before responding to your comment!

1. Full faith and credit: The recognition of foreign-country judgments strikes me as a curious place to plant a flag for faith and credit principles. Presumably, states have much less interest in whether their recognition judgments are enforced in other states than the judgments they render on the merits. For example, say we have two judgments. One is rendered in Kazakhstan, under Kazakh law, and is recognized in New York (and thus is now a “New York judgment”). The second is rendered in New York, under New York law. Enforcement of both is sought in Ohio. From almost any standpoint, I think New York has a greater interest in the enforcement of the second judgment, and should tolerate a higher degree of scrutiny from Ohio on the first. (I discuss some of the constitutional issues at pp. 488-91 of the article.)

2. Ted contends that my article’s proposal creates the possibility of multiple recognition lawsuits throughout the US. But under my proposed statute, defendants could move, as they can today, to stay or dismiss actions based on usual principles, including res judicata (if one court has already decided recognition). I am not saying my statute resolves this annoyance, but I don’t think it makes it worse.

3. “System” of corrupt tribunals vs. a single corrupt tribunal: Ted notes that “if what we would consider monkey business . . . is just business as usual in the foreign judiciary, well, that’s just another way of saying that the foreign judiciary overall is inadequate.” This may be true as a matter of logic, but courts applying the 1962 Act (the UFMJRA) have emphasized the difference between the inadequacy of judicial *systems* and the inadequacy of *individual tribunals*, and have held that an inability to prove that a *system* is inadequate is fatal to the “inadequate tribunals” defense to recognition.

For example, in Lloyds v. Ashenden, Posner emphasized that the word “system” in the 1962 Act defeated the defendants’ argument because any problems in the rendering tribunal did not necessarily demonstrate inadequacy of the “system” of which it was a part. (The system there was England’s, so of course attacking it wouldn’t have worked.)

I don’t want to lean too heavily on this because a thoughtful court may well conclude, as Ted argues, that a seriously flawed tribunal that is not reversed by higher courts or collaterally does suggest a failure of a “system,” but US courts have shown some reluctance to reach this conclusion, because it means indicting an entire foreign judiciary.

4. Finally, I think Ted draws some incomplete lessons from the Chevron/Ecuador case to argue that the problem the article identifies will occur too rarely to worry about. For example, he notes that the Ecuadorian plaintiffs “never even sought recognition of the judgment in the US.” This was no accident. Chevron has tons of assets in the US and the US has perhaps the most permissive regime in the world for enforcing foreign judgments. Speaking only for myself (my representation of Chevron ended over two years ago), the main reason the plaintiffs did not seek recognition in the US is because of the extensive investigation and litigation efforts that Chevron undertook (justifiably, in my view) in US courts to expose the corrupt Ecuadorian judgment. Those efforts led to findings of fraud by multiple federal courts and culminated in a 497-page civil RICO judgment in Chevron’s favor last month. The article is not about the Chevron case, but I think it’s a mistake to conclude that because Chevron’s efforts – which cost a fortune and took years – succeeded, future frauds will surely fail as well. Chevron was fortunate to uncover videotapes of the plaintiffs’ fraud, and had to spend a fortune to do so. Foreign judgments that are procured through questionable means remain a concern, and our system is still not well equipped to deal with them.

That said, as Ted notes, my proposal is not a “call to arms” about litigation fraud. (I think that bell has been sounded.) Rather, its goal is to get states and the bar to think hard about the tradeoffs between permissive and restrictive recognition regimes, particularly given that plaintiffs can sometimes arbitrage their way around regimes they don’t like.

Thanks again for the feedback!