Civil Procedure

Prof. Diego Zambrano (Stanford) Guest-Blogging About "Foreign Dictators in U.S. Court"

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I'm delighted to report that Stanford law professor Diego Zambrano (an expert on civil procedure) will be guest-blogging this week about his forthcoming University of Chicago Law Review article, Foreign Dictators in U.S. Court:

It's almost impossible to sue a foreign government in U.S. courts. The Foreign Sovereign Immunities Act, the court-created "act of state" doctrine, and other common law immunities shield foreign officials and governments from most lawsuits. For instance, courts have dismissed claims against China, Cuba, Venezuela, and Russia over allegations of torture, detentions, and election interference. Yet, foreign governments have unfettered access to U.S. courts as plaintiffs. And foreign dictatorships, including Russia, China, Turkey, and Venezuela, have leveraged this access to harass political dissidents, critics, and even newspapers in the United States. These doctrines create an asymmetry at the heart of this Article: foreign dictators and their proxies can access our courts as plaintiffs to harass their opponents, but their regimes are, in turn, immune from lawsuits here.

This Article exposes this asymmetry and argues that U.S. courts and Congress should make it harder for foreign dictators to abuse our legal system. The Article offers three novel contributions.

First, the Article provides the first systematic assessment of foreign dictatorships in U.S. court. While much of the literature is siloed by substantive area of law—focusing on contexts like human rights or property expropriations—this Article treats dictators as a trans-substantive category of litigants, worthy of special analysis.

Second, the Article exposes how foreign dictators are increasingly taking advantage of U.S. courts and comity doctrines, especially as plaintiffs. In a misguided effort to promote harmonious foreign relations, courts have provided foreign dictators an array of protections and privileges that dictators are eagerly exploiting.

Finally, the Article demonstrates that there is no historical, constitutional, or statutory obligation on U.S. courts to give foreign dictators these legal protections and unfettered access to our courts. Because of that, I offer four concrete proposals to both stymy dictators' access to U.S. court as plaintiffs—through a proposed foreign sovereign anti-SLAPP statute—and weaken the protections that dictators enjoy as defendants. Simply stated, U.S. courts should not be instruments of foreign authoritarian oppression.

I very much look forward to Prof. Zambrano's posts!

NEXT: Justice Thomas still wants to overrule the Feres Doctrine. Justices Gorsuch, Kavanaugh, and Barrett apparently do not.

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  1. All pretextual (fake) uses of civil procedure should be punished. For example, prison time is proper for the Democrat prosecutors of the Mueller investigation.

    1. Oh geez…
      His hand went up and his brain turned off

  2. It seems perfectly right that you shouldn’t be able to sue China for human rights abuse committed in China in an American court. If someone stabs you while you’re visiting California, the proper venue for that stabbing is a California Court not a Louisiana court after all.

  3. The question I ask involves the penalties (e.g. legal fees) assessed as part of the Anti-SLAPP laws.

    I’m thinking specifically of the ChiComs and the extent to which they may be behind both the “Stop AAPI Hate” groups and that rather asinine lawsuit brought by the NYPD Detective, discussed here a while back.

    If the CCP makes itself a party to the action by bringing the SLAPP suit, hasn’t it accepted the jurisdiction of the court and hence agreed to be subject to it?

    And on a larger scale, once a country (OK, dictator) agrees to waive sovereignty by choosing to be a plaintiff in the court, why doesn’t that reciprocate into a waiver of the jurisdiction right when sued?

    After all, the US has *consistently* refused to recognize the jurisdiction of the International Court in the Hague — including, I believe, in cases where it would have been to our benefit to do so.

  4. The Supreme Court’s abortion jurisprudence also creates an equally odd assymmetry between the mother and her fetus.

    Will Professor Zambrino also be blogging about that assymmetry as well? It is definitely a curious consequence of our rather odd law on the subject.

    In both cases, and the assymmetries are in many ways very similar, it’s a feature, not a bug.

  5. I look forward to US political leaders having the balls to address this inequity.

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