Foreign Dictators in U.S. Court

Diego A. Zambrano

Associate Professor, Stanford Law School.

This Article received an honorable mention in the national 2021 Association of American Law Schools Scholarly Papers Competition, awarded on a blind basis by a committee of established scholars. For thoughtful comments and conversations, I thank Pam Bookman, Curtis Bradley, John Coyle, William Dodge, Robin Effron, Maggie Gardner, Tom Ginsburg, Manuel Gómez, Aziz Huq, Erik Jensen, Chimène Keitner, Michael McConnell, David Sklansky, Beth Van Schaack, Allen Weiner, Ingrid Wuerth, and participants at the Junior International Law Scholars Association conference. I am most grateful to Mackenzie Austin and Chris Meyer for invaluable research assistance and also thank Alice Bishop, Nitisha Baronia, and Mathew Simkovits for their help.

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Abstract

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 that asymmetry and argues that U.S. courts and Congress should make it harder for foreign dictators to abuse our legal system. This Article offers three novel contributions. First, this Article provides the first systematic assessment of foreign dictatorships in U.S. courts. While much of the literature is siloed by area of substantive law—focusing on contexts like human rights or property expropriations—this Article treats dictators as a transsubstantive category of litigants, worthy of special analysis. Second, this 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, which dictators are eagerly exploiting. Finally, this 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 stymie dictators’ access to U.S. courts 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.

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