William & Mary Law Review


The Supreme Court's recent reliance on foreign precedent to interpret the Constitution sparked a firestorm of criticism and spawned a rich debate regarding the extent to which U.S. courts should defer to foreign law when developing U.S. constitutional norms. This Article looks at a subset of the issue of deference to foreign law and international influences in judicial decision making: the extent to which our courts should apply American notions of due process in determining whether to recognize and enforce judgments obtained abroad. Courts reviewing foreign judgments to determine whether they areworthy of recognition have created an "international due process"analysis. The analysis requires courts to pass judgment on theoverall judicial and political systems of the countries from which the judgments originated and to determine whether the systems as a whole are fundamentally fair. Remarkably, courts ignore the individual proceedings that resulted in the judgment and refuse to determine whether the foreign courts afforded the individual litigants due process, relying instead on political "evidence" and judges' own personal perceptions of the foreign countries. Courts have gone so far as to label countries "civilized" and "uncivilized. " Under this analysis, courts will enforce judgments from "civilized" nations that violate U.S. constitutional norms and refuse to enforce judgments from "uncivilized" countries even if the foreign countries afforded the litigants due process. This Article argues that the international due process analysis violates the separation of powers because it requires courts to make foreign policy. This Article also re-envisions an international due process analysis that would require courts to assess--according to American notions of due process-the particular foreign proceedings in which judgments sought to be recognized and enforced were rendered.