The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As I have argued over the past three days, U.S. courts are unnecessarily allowing foreign dictators to take advantage of access to our courts. No statute, doctrine, or constitutional principle forces courts to treat foreign dictatorships the same way as other parties. There is no obligation to give authoritarians free access to our courts or protections under the act of state or comity doctrines. Yet, in a forthcoming article, I argue that courts might not want to actively discriminate against foreign dictatorships. Unfortunately, there is simply no easy way for courts to administer a categorical anti-dictatorship standard. Today, I want to focus on three problems with anti-dictatorship discrimination: separation of powers, administrability, and a potential category-error.
Let's begin with separation of powers and administrability concerns, which have particular bite in this context. The standard argument cashes out here: the executive has a wide array of advantages over the judiciary in foreign affairs, including expertise, speed, and flexibility. These matter when it comes to foreign dictators because, as I argue in the paper, "forcing U.S. courts to distinguish between friendly and unfriendly dictatorships, as well as the different shades of authoritarian governments (e.g., competitive authoritarian, hybrid regimes, semidemocracy, illiberal democracy, etc.) would be unfeasible. Courts would have difficulty determining even whether a foreign dictator is a U.S. ally or rival. This problem is best captured by the apocryphal quotation attributed to President Roosevelt that Nicaraguan dictator Somoza 'may be a son of a bitch, but he's our son of a bitch.'"
Even if courts could discern among the worst types of dictators—Kim Jong-Un would be an easy one—they may often disagree with other courts or with the executive, bringing disuniformity to our foreign affairs.
In addition to the separation of powers and administrability problems, there's a potential category-error in this entire effort:
The problem with dictatorial acts is that they fundamentally challenge basic human rights and liberties. But democratic governments can do that, too. That is why U.S. courts have previously refused to enforce libel awards from the United Kingdom … Singapore's authoritarian government may respect certain rights more than Brazil's backsliding democracy. It would therefore be underinclusive to discriminate against foreign dictatorships but allow similarly egregious acts performed by democracies in U.S. courts….
Judging all dictatorships for purposes of all claims would also be substantively overinclusive. There is no need to prevent dictatorships from litigating non-political claims like contract disputes or embassy hit-and-run accidents…. Suppose that Venezuela's authoritarian government enters into a series of contracts with an American construction company that include choice of law and choice of forum clauses that point to U.S. courts. Suppose the company then refuses to perform under the contract but nonetheless retains payment. Surely, U.S. courts should be available for such a claim, even if it is filed in the name of Venezuela's dictator. This is the type of claim where the United States retains an interest in disciplining domestic companies and enforcing the relevant contract laws.
For those who still wish courts could create an anti-dictatorship standard, another reason to be skeptical is that courts actually tried but failed to implement something like it in the context of extraditions. Bilateral extradition treaties allow signatories to "demand and obtain extradition of an accused criminal." But the so-called "political offense exception" allows courts to refuse extradition on the grounds that a foreign sovereign has charged the defendant with "offenses … of a political character."
For decades, some courts and commentators argued that this political offense exception was "designed to protect the right to rebel against tyrannical governments." In other words, it allowed democracies to refuse extradition of political dissidents when a dictatorship requested it. As Thomas Carbonneau argued, "[b]y invoking the political offense exception when confronted with extradition requests from despotic governments, democratic States could proffer protection to political dissenters and thus indirectly promote democratic tendencies."
Some courts tried to operationalize this into a test, looking at whether a dissident's acts "were blows struck in the cause of freedom against a repressive totalitarian regime." Unfortunately, this approach has faltered in recent decades. Indeed, the Ninth Circuit rejected it entirely because it did not "believe it appropriate to make qualitative judgments regarding a foreign government or a struggle designed to alter that government." Instead, the Ninth Circuit has favored an analysis that protects dissident acts that are "political."
The story of the political offense exception counsels, then, that an anti-dictatorship standard may be inappropriate and also unnecessary if there are alternative ways to get at the same problem.
Tomorrow, I sidestep these concerns and propose an array of suggestions that may allow courts to refuse the benefit of international comity to most foreign dictators in an administrable way.