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 that asymmetry and argues that U.S. courts and Congress should make it harder for foreign dictators to abuse our legal system.
International Law
For helpful discussions, the authors thank Joshua Braver, Yoav Dotan, Roberto Dalledone Machado Filho, Juliano Zaiden Benvindo, Sabrina Ragone, Jeong-In Yun, and participants at the ICON-S Conference in Santiago, Chile, July 2019, as well as workshops at Georgetown University Law Center, the University of Chicago Law School, University of Maryland Carey School of Law, NYU School of Law, Vanderbilt Law School, and the University of California-Berkeley School of Law. Thanks to Young Hun Kim for providing useful data and to Kali Cilli and Delhon Braaten for research assistance.
We thank Drew Adan, Alison Burke, Ann-Marie Cooper, Clément Dupuy, Jason Eiseman, Sarah Kraus, Evelyn Ma, John Nann, Michael VanderHeijden, and especially Ryan Harrington, who hunted down, translated, and analyzed manuscripts, manifestos, archival materials, and rare books from libraries and collections all around the world, and Theresa Cullen for her leadership of the Yale Law School Library, without which this project would not have been possible. We are grateful to Stuart Shirrell for his assistance with the data analysis. We are indebted to our research assistants, who brought to the project outstanding legal research skills, analytical expertise, and extraordinary language skills, including Classical Chinese, Latin, French, German, Portuguese, Dutch, Italian, and Ottoman Turkish: Nico Banac, Jacob Bennett, Perot Bissell, Johannes Buchheim, Varun Char, Idriss Fofana, Jade Ford, Ole Hinz, Michelle Huang, Sameer Jaywant, Aubrey Jones, Tobias Kuehne, Ling-wei Kung, Steve Lance, Ji Ma, Gregor Novak, Pedro Ramirez, Britta Redwood, Bonnie Robinson, Elisa Ronzheimer, James Rumsey-Merlan, Daniel Schwennicke, Ingmar Samyn, Mary Ella Simmons, David Stanton, Evan Welber, and Thorsten Wilhelm. We also thank participants in the Vanderbilt Law School works-in-progress workshop and Yale Law School faculty workshop for their immensely helpful feedback.
The UN Charter provides that states are prohibited from the “threat or use of force” against other sovereign states.
The authors thank the twenty-one judges in the Duke Judicial Studies LLM program (2016–17), Tom Ginsburg, and Jack Knight for comments. Susanna Rychlak provided excellent research assistance.
I. The Core Claim
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