David H. Moore

David H. Moore, United States Courts and Imperialism, 73 Wash. & Lee L. Rev. Online 338 (2016)

In Response To
Foreign Governments as Plaintiffs in U.S. Courts and the Case Against “Judicial Imperialism”

August 16, 2016

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When U.S. Courts adjudicate transnational matters, they risk two forms of judicial imperialism. The first—unilateral imperialism—involves adjudication by a single state at the expense of multilateral forms of resolution or global governance. The second—sovereigntist imperialism—threatens the sovereignty of other states who might wish to resolve the controversy themselves. The risk of imperialism may lead U.S. courts to hesitate to adjudicate transnational claims. In Foreign Governments as Plaintiffs in U.S. Courts and the Case Against “Judicial Imperialism,” Professor Hannah Buxbaum highlights that in addition to facing involuntary adjudication in U.S. courts, foreign states voluntarily sue in U.S. courts as well. The phenomenon of foreign states as plaintiffs, she argues, undermines concerns for imperialism and counsels in favor of U.S. judicial resolution of transnational matters.

Buxbaum’s focus on foreign states as plaintiffs is an important contribution. The implications of the focus, however, are more circumscribed than her article might suggest. The fact that foreign states occasionally sue in U.S. courts means that adjudication of transnational claims by U.S. courts does not always constitute unilateral imperialism. Rather, suits by foreign states may be a form of global governance. When it comes to concerns for sovereigntist imperialism, by contrast, foreign invocation of U.S. jurisdiction fails to undermine the sovereignty concerns that arise when U.S. courts adjudicate against the will of foreign states. First, the typical claims foreign states assert as plaintiffs themselves show respect for sovereignty. Second, consent matters, and in nonconsensual cases sovereignty concerns continue to exist. Third, notions of reciprocity do not automatically justify involuntary adjudication due to foreign state invocation of U.S. jurisdiction. More is needed to conclude that the phenomenon of foreign states as plaintiffs justifies adjudication against the will of those states.